Bumping is when employee A who is at risk of being retrenched ‘bumps’ employee B out of his/her position and employee B gets retrenched instead. Bumping is utilized to retain senior, valued staff members who opt to move to a more junior position to remain in the companies’ employ.
Bumping has 2 forms namely horizontal bumping and vertical bumping.
Vertical bumping is when an employee is bumped to a less favourable position whereas horizontal bumping, bumps the employee into a role of similar status, pay etc.
Which one first?
The employer must bump the employees horizontally before bumping them vertically.
Up to thus far, an employer didn’t have to consider bumping as a selection criterion, unless it was specifically raised by employees during the retrenchment consultations. This means that employers could successfully apply the Last in First Out (LIFO) principle, without having to consider or apply bumping. This issue came under scrutiny in the Labour Appeal Court (LAC) in the recent case of Nkosinathi Mbongiseni Mtshali v Bell Equipment.
Facts of the case: Mr Mtshali worked as a production supervisor and in 2009, retrenchment occurred. In the retrenchment consultations, the company considered bumping but due to its widespread geographical locations found it wasn’t feasible. The company and trade unions agreed that the selection criteria to be applied were: The geographical location of the position; Qualification, competency and experience; and the LIFO principle. The company only needed 1 supervisor in Mr Mtshalis’ division. Mr Mtshali was retrenched as Mr Naidoo had more experience. Mr Mtshali then challenged the fairness of his dismissal in the Labour Court and argued that the company was unfair to apply the agreed selection criteria in separate units and that they should have been applied across the units as well. The Labour Court disagreed and held that the criteria had been fairly applied.
Mtshali then appealed the decision to the LAC and succeeded. The LAC said the company had applied the selection criteria unfairly for the following reasons:
- The LAC referred to Porter Motor Group v Karachi  4 BLLR 357 (LAC) in which it was held that “fairness is not a one-way street…the Act requires both parties to attempt to reach consensus on alternative measures to retrenchment, so there is a duty on an employer as well to raise bumping as an alternative.”
- The LAC also referred to the case of General Food Industries Ltd t/a Blue Ribbon Bakeries v FAWU and Others  9 BLLR 849 (LAC) in which the court found that the fact that employees had not explored the possibility of bumping during the retrenchment consultation process did not mean that they couldn’t challenge the fairness of their selection during the trial.
- The company could not show that the employees retained were better skilled, qualified or experienced than Mr Mtshali.
- The company could not show that bumping across different production lines or moving employees from one geographical area to another would cause disruption.
- The company should not have unilaterally decided that bumping was not feasible.
During retrenchments, all employers must attempt to bump their staff members both vertically and horizontally. Employers need to make informed decisions hereon and not simply discard the application and appropriateness of bumping.
ABOUT THE AUTHOR
Kyle Slier obtained his LLB from The University Of South Africa in 2016 and joined SEESA in June 2017. He has since been employed as a Labour Legal Advisor at SEESA Head Office in Pretoria.