ConCourt dismisses appeal by over 1 800 retrenched Edcon employees

The Constitutional Court has dismissed an appeal by 1 818 retrenched employees of retailer Edcon.

This was despite the court granting the applicants leave to appeal a prior Labour Appeal Court ruling, which refused them condonation for the late launching of an application in terms of the Labour Relations Act (LRA), challenging the procedural fairness of their retrenchment and asking for compensation.

In its order, the Constitutional Court refers to the fact that Edcon used to employ about 40 000 staff in 1 300 outlets across the country.

The retail giant, however, fell on hard times and in April 2013 it commenced a process of operational restructuring.

Approximately 3 000 employees, including the 1 818 applicants in this case, were retrenched between 2013 and 2015.

The retrenchment process commenced with Edcon issuing written notices in terms of the LRA. However, Edcon then issued dismissal notices prior to the lapse of prescribed time periods provided for in the LRA.

The Constitutional Court had to decide whether it agreed with the Labour Appeal Court that the Labour Court correctly granted the applicants condonation for having instituted their latest application after the expiry of the prescribed 30-day period in terms of the LRA.

In overturning the Labour Court's decision on condonation, the Labour Appeal Court expressed the view that a "failed legal strategy" cannot form the basis of a condonation application where an application in terms of the LRA was filed years out of time.

Dissatisfied with the decision of the Labour Appeal Court, the applicants sought leave to appeal to the Constitutional Court, claiming that Edcon's failure to comply with prescribed procedures in the LRA rendered their dismissals invalid and entitling them to compensation.

The retrenched former Edcon employees argued that the reason for the delay in their bringing their latest action was that they had previously pursued an overturned legal strategy. The Labour Court accepted this as a plausible explanation.

The Constitutional Court found that the Labour Appeal Court was justified to "interfere" because the Labour Court ruling was "influenced by wrong principles".

The Constitutional Court order states that, despite the availability of a statutory remedy in terms of the LRA to approach the Labour Court on an expedited basis to compel Edcon to comply with a fair procedure or to interdict or restrain it from dismissing them before having complied with a fair procedure, the applicants elected not to do so.

The applicants also elected neither to resort to a retaliatory strike action in terms of the LRA, nor to refer a dispute about their unfair dismissals to the CCMA in terms of the LRA, the Constitutional Court pointed out.

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