In a recent judgment of the Labour Court in Durban, delivered on 05 March 2024, the principle of bumping was tested. The case, SACTWU obo Members v FYVIE G N.O, FYVIE I N.O, and CROOKES G N.O, involved the retrenchment of 15 employees from a vegetable farm, following the cessation of the farm’s operations.
The union representing the employees, SACTWU, argued that the retrenchment process was unfair because the employer failed to apply the principle of Last-In First-Out (LIFO), and in particular, the practice of bumping. Bumping involves the replacement of employees with shorter service by longer-serving employees from another part of the business. This is done to ensure the continued smooth operation of the vehicle (or business) and to reward the loyalty of the longer serving employees.
In this case, SACTWU argued that long-serving employees from the vegetable farm should have replaced employees with less service on the employer’s macadamia nut farm.
The employer, on the other hand, argued that the employees from the vegetable farm did not have the skills required for the macadamia nut farm, and that training them would be onerous. The court ultimately found in favour of the employer, ruling that the training requirements for the vegetable farm employees would be unreasonable, and that the proposal of bumping was not feasible, since the operations of the macadamia farming was more complex.
The Court discusses that while the principle is rooted in fairness and aims to reward long-serving employees for their loyalty, it is not always feasible to apply. In short, bumping should not be applied if the longer-serving employee cannot do the work of the employee with shorter service, and if retraining would place an unreasonable burden on the employer.
This case serves as a reminder that while the principle of bumping is an important consideration in retrenchment situations, it is not always applicable. This applies similarly in the motor industry where in one business, there may be several skillsets and/or operational divisions, across which the principle of bumping may not find application, due to the technical competencies required.
Employers and unions must carefully consider the skills and training requirements of employees when proposing and evaluating the feasibility of bumping as a means of avoiding retrenchment.
By George Herbst | Director
