Gilbert John Ramontsho had approached the CoA seeking to overturn an Industrial Court’s decision that reinstatement wasn't an appropriate remedy following his unlawful retrenchment in 2019. The Industrial Court had instead awarded the appellant an equivalent of six months’ salary offered by the institution for Ramontsho’s admitted unfair and unlawful retrenchment. Ramontsho, who had been employed as a Public Service Vehicle (PSV) driver by BUAN since 2009, was retrenched as he couldn't meet the qualifications required by the organisational structure as he didn't have a Form 5 certificate. However, he argued that the BUAN Conversion Rules and Guidelines weren't adhered to in so far as his employment was concerned and this resulted in unfair retrenchment.
He also argued that the Industrial Court misdirected itself by not accepting an uncontroverted version on the issue of reinstatement, including evidence that he has since obtained Form 5 qualification in 2020. On Friday, a bench of three CoA justices, Goemekgabo Loeto Tebogo-Maruping, Edwin Cameron and Reuben Lekorwe, all agreed that Ramontsho’s retrenchment was unfair and unlawful, therefore null and void. When delivering the judgment, Tebogo-Maruping said the appellant is entitled to be reinstated to the position he held before his purported dismissal subject to payment of all employment benefits due to him. The court ordered that the court order shall be carried out within 30 days of issue. In their reasons for upholding the appeal, Justice Tebogo-Maruping stated that they agree with Ramontsho’s lawyer, Kago Mokotedi that had the Industrial Court considered all the relevant factors including the uncontroverted evidence of vacancies, the appellant’s 2020 Form 5 qualification, and the absence of irrevocable breakdown in the employment relationship, it would have exercised its discretion judiciously and granted the relief of reinstatement prayed for. The justices also dismissed the reasoning that four years had passed since Ramontsho’s retrenchment, therefore, making it impractical to reinstate him.
“We aren't persuaded that a period of four years’ absence on its own made it impracticable to reinstate the appellant. This is especially so if there is no evidence that the delay in resolving the dispute earlier was caused by the appellant. “Where, as in the present appeal, BUAN is unable to establish a firm basis why the appellant cannot be re-accommodated in its establishment, an order of reinstatement isn't only practical but an appropriate remedy for the admittedly unlawful retrenchment,” read the judgment. The justices also said the court below didn't even interrogate if the vacancies of truck driver, groundworker, and herder which Ramontsho qualified for, existed within the new structure to accommodate him with the Junior Certificate he had.
