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Legal  |  Legal

Last updated: 01 October 2009

FAWU secured an interdict against dismissal of its members by Cold Chain

1 October 2009

On the 22 June 2009 Cold Chain sent a notice in terms of Section 189 (3) of the Labour Relations Act wherein it invited FAWU to consult about the possibility of dismissal of its members based on operational requirements. The consultation took place under the auspices of the Commission for Conciliation Mediation and Arbitration in Port Elizabeth. The reason advanced by the company for such dismissals was the fact that it intends to outsource the distribution and warehousing functions of its Port Elizabeth operations and consequently about 48 members of FAWU were to be affected by the proposed retrenchment .The union objected to this approach and advise the company to follow Section 197 of the LRA as this amount to transfer of business and therefore our members should not be retrenched but rather the outsourcing company should transfer their contracts of employment on same terms and conditions that are prevailing with Cold Chain. The Cold Chain refused and insisted that the transaction does not fall under the ambit of Section 197 but rather Section 189. The union decided to approach the Labour Court for a declaratory order that will in essence compel Cold Chain and Freezerlines (outsourcing) to regard the transaction as the one falling under the ambit of Section 197 of the LRA. The matter was heard on the 08 September 2009 at the Cape Town Labour Court by Justice Francois, and the judgement was reserved for 30September 2009, the union was once again vindicated by the Labour Court as the following order was made;-

  1. " The Proposed Agreement between First (Cold Chain) and the Second (Freezerlines Pty Ltd) respondents in terms of which second respondent will provide distribution and warehousing services to the customers of First respondents Port Elizabeth branch is an agreement to which upon implementation Section 197 of the Act would apply."
  2. The First Respondents (Cold Chain) is interdicted and restrained from dismissing any of the applicant`s members employed by it for reason related to the a foresaid transfer.

This is an important victory to the Labour Movement in general and particularly to those affected 48 employees who are members of FAWU and their immediate families. The judgement has at least for now allay fears to those workers of the prospects of loosing jobs, at this point in time of Economic Meltdown engulfing the country. We call upon Cold Chain to be sensitive to the workers and act responsible by abandoning its unwarranted plans and abide by the judgement. This victory again signal FAWU`s objective of protecting and defending our workers rights and confirm our confidence in the judicially system of our country. We specially salute Judge Francis for this remarkable judgement and this display his understanding of the Labour Law.

Compiled by
Vusumzi Landu
Head of Legal Department (082 450 9594)