The concept of bumping in the context of retrenchments is critical for determining the fairness of the selection criteria used by employers when dismissing employees. The jurisprudence on this matter, particularly as discussed in cases such as Chemical Workers Industrial Union and Others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) and Fischer Tube Technik SA v Bayene and Another (JA100/23) [2024] ZALAC 25 (21 May 2024), provides a comprehensive understanding of the principles and practical application of bumping.
Key Points on Bumping in Retrenchment:
Definition and Types:
- Horizontal Bumping: An employee in a redundant post displaces an employee with shorter service at the same or similar level, maintaining similar status, conditions of service, and pay.
- Vertical Bumping: An employee in a redundant post replaces an employee with shorter service engaged in a lower position in the occupational hierarchy, resulting in a lower status, conditions, and pay.
Case Law Insights:
- In Chemical Workers Industrial Union and Others v Latex Surgical Products, the court discussed the necessity of having a fair reason for the dismissal and how bumping might influence the selection process.
- In Fischer Tube Technik SA v Bayene, the Labour Appeal Court emphasized that while there is no absolute obligation for employers to bump, the matter must be addressed during the consultation process when applying the Last-In-First-Out (LIFO) principle.
Employer and Employee Obligations:
- Employer’s Duty: An employer must consult with employees about the possibility of bumping and justify any decision not to bump.
- Employee’s Role: Employees must raise bumping as an alternative to retrenchment and can refuse offers of vertical bumping if they deem the lower salary unacceptable.
Fairness and Practicality:
- The application of bumping is inherently linked to fairness, balancing the interests of the employer and employees. The principles laid out in Porter Motor Group v Karachi (2002) 23 ILJ 348 (LAC) highlight that bumping should first be considered horizontally before resorting to vertical displacement, and it should be applied only when it does not cause undue disruption to the employer’s operations.
- National Union of Mineworkers and Others v WBHO Construction (Pty) Ltd (J1687/15, JS620/15) [2017] ZALCJHB 512 demonstrated that bumping across divisions must be operationally justified and feasible, taking into account the differences in client bases, job requirements, and practicalities of relocation or re-assignment.
While bumping is not an absolute requirement in retrenchment selection criteria, it is a crucial consideration that must be discussed during the consultation process. The principles derived from case law indicate that bumping should be applied in a manner that is fair and practical, with horizontal bumping being the preferred initial approach. Employers must be prepared to justify their decisions regarding bumping, ensuring that the selection process for retrenchment remains objective and fair.
