Fair retrenchment even if work remains: Understanding redundancy in South African Law
Fair retrenchment even if work remains: Understanding redundancy in South African Law
Case
De Weijer v Babcock Africa Services (Pty) Ltd (JS195/21) [2025] ZALCJHB 193 (19 May 2025)
Background
Mr De Weijer, a property manager employed in the Babcock Group, was retrenched in October
2020 amid a Covid-era restructuring. Babcock told him his position was redundant. He argued the job still
“existed” because the tasks were being done by others, and said the company failed to consider
alternatives (including bumping) or share adequate financial info.
Two points the Court emphasised
- Babcock conceded “the task is there, but the position no longer exists”—the tasks were redistributed. The Court held that is compatible with a genuine redundancy, and that Mr De Weijer’s post had in fact become redundant.
- On the process, the employer consulted over three months, disclosed sufficient information for section 189 purposes, engaged on alternatives and bumping, and treated severance uniformly. The Court found the retrenchment procedurally and substantively fair. (Only a severance shortfall was awarded because Babcock had excluded certain benefits from “remuneration” when calculating BCEA severance.)
Outcome
Dismissal upheld; severance recalculated—an additional R77,370.57 ordered.
Why a job can “exist” yet still be redundant
South African law distinguishes between tasks and a post. A redundancy exists where a position is no longer needed—even if parts of the work continue in the business (for example, absorbed into other roles). The Court in De Weijer leaned on classic definitions of redundancy and retrenchment: redundancy means superfluous or no longer necessary; retrenchment is the reduction of the workforce because of redundancy and does not require the formal abolition of every task or even every “post” on the organogram.
In De Weijer, Babcock’s organogram no longer contained the property-projects post; the duties were dispersed. That met the redundancy test, so long as the section 189 process was genuine.
How the Court assessed the section 189 process
- Need to retrench: The company showed a commercial rationale linked to Covid-era conditions and a strategic repositioning.
- Information disclosure: The employee wanted granular financials; the Court said section 189 requires all relevant information—not a deep-dive for alternative business solutions. The snapshot provided was enough to consult meaningfully.
- Alternatives & vacancies: The evidence showed no vacant suitable roles at the time (recruitment was frozen).
- Bumping: The employer discussed bumping, gave feedback, and explained why the identified incumbents’ skills were a better fit (e.g., specialist “Volvo technical” expertise). The Court accepted that bumping was not feasible in the circumstances—what matters is genuine consultation, not a forced outcome.
The severance sting: don’t forget benefits
Although the dismissal stood, the employer underpaid severance by using basic salary only. The Court reaffirmed BCEA s41(2) (one week’s remuneration per completed year) read with s35(5) regulations: certain allowances and employer contributions (e.g., housing, car, pension/provident, medical aid, funeral/death schemes) form part of “remuneration” for severance. On the facts, those should have been included, so the employee recovered R77,370.57.
Practical takeaways
For employers
You may restructure and redistribute tasks—a fair retrenchment does not fail merely because fragments of the work live on, if the post itself is redundant and you run a proper section 189 process.
Consult properly: disclose relevant information; engage on alternatives (vacancies, training, timing), and address bumping with reasons if it’s not feasible. Record this.
Calculate severance correctly: use total BCEA “remuneration” (not just basic pay) in line with the s35(5) notice categories. Uniform treatment is fine, but you still have to include benefits in the calculation.
For employees
If your post is removed but your tasks continue, the dismissal can still be fair. Focus your challenge on process gaps (e.g., inadequate consultation) or alternatives that were ignored.
Bumping isn’t automatic—but the employer must consult about it; come prepared to show why you can do the proposed incumbent’s job (skills, experience).
Check your severance math. If benefits were excluded, you may have a short-payment claim even if the retrenchment itself is upheld.
Key learnings
An employee can be retrenched even if the “job” still exists in another guise, provided the position is genuinely redundant, alternatives are properly explored, and section 189 is followed. De Weijer confirms that courts look at substance over labels: if the post disappears (even while tasks are shared out) and the process is fair, the retrenchment will ordinarily stand—but severance must be calculated on full BCEA remuneration.
