Six employees who worked for the healthcare NPO organisation Right to Care will be paid out six months’ salary after the Johannesburg Labour Court ruled that their retrenchment was substantively unfair, that the organisation had failed to justify the dismissals, had ignored viable alternatives, and applied an unfair selection process, reports IOL.
The dispute arose when Right to Care retrenched the six – most of them pharmacist assistants – after a reduction in US donor funding for its APACE programme, which focuses on HIV/Aids and TB interventions.
The court rejected the argument that the slashing of funds from the United States Agency for International Development necessitated the retrenchments.
Judge Robert Makhura said the NGO had failed to demonstrate that the funding reduction placed the organisation under broader financial strain and that at the time of the retrenchments, there were hundreds of vacant positions across various programmes within the organisation.
A reduction in funding within a single programme could not, on its own, justify retrenchments where the organisation as a whole remained financially stable, he found.
Additionally, instead of placing affected employees into available roles, the organisation required them to reapply and compete for positions, including jobs they had previously held.
The court ruled that this did not constitute a fair selection criterion but was effectively a standard recruitment process imposed on employees already facing dismissal, and that requiring employees to apply for their own jobs does not amount to a genuine alternative to retrenchment. The process lacked transparency, with the employer failing to provide evidence explaining how candidates were assessed or selected, it added.
The consultation process required under labour law had not been meaningfully conducted, and despite staff proposing alternatives, including cost-cutting measures, voluntary retrenchments and the application of “last in, first out” principles, the employer failed to properly engage with any of these suggestions.
The court concluded that the decision to retrench had effectively been made before consultations began, rendering the process little more than a formality.
Despite numerous vacancies within the organisation, the court found that Right to Care failed to take reasonable steps to avoid dismissals. Affected employees were simply told to apply for available positions, with no structured attempt to redeploy them or provide training where necessary. This, the court concluded, amounted to a breach of the employer’s obligations.
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