- Amy Dean lost her job at Cape Town City Ballet during the financial crisis brought on by COVID-19.
- The Labour Court found that the selection process depended too much on subjective criteria and did not have adequate safeguards in place.
- The court ordered the company to pay Dean R159,000 in compensation, recalculate her severance and notice pay, and also cover half of her legal costs.
The retrenchment of a Cape Town City Ballet dancer has highlighted serious problems with how the company chose which employees would lose their jobs during the COVID-19 financial crisis.
Judge R Lagrange of the Labour Court in Cape Town found that the company could not prove the process used to select Amy Dean for retrenchment was fair or objective.
Dean joined Cape Town City Ballet in 2015 and took part in 54 productions, including 14 feature roles. She has a Bachelor of Music in Dance from the University of Cape Town and holds a teaching certificate from the Royal Academy of Dance.
In September 2020, the company retrenched nine dancers after live performances stopped due to the pandemic. They used a skills assessment matrix to decide who would stay, combining technical criteria with subjective measures like company culture fit, coachability, career path possibilities, attitude, and visitor impressions.
The company did not call any of the four assessors who carried out the assessments to testify, nor did it call the person who compiled the final scores. Judge Lagrange said this meant the employer could not properly show how the assessments were done or whether the scores could be trusted.
“The employer failed to call any assessor to defend the objectivity and fairness of the process,” Judge Lagrange said. The court decided that the assessment process was far too subjective, lacked moderation, and was not thorough enough to meet the standard for fair and objective selection.
Redeployment proposal was not properly considered
Dean suggested moving into teaching and education work instead of being retrenched. She had the right teaching qualifications and noted that the company was still bringing in temporary ballet teachers while letting permanent dancers go.
The court found that the company did not give a proper explanation for why Dean could not be moved into work she was qualified for. “To merely retort that she was employed as a dancer, not as a teacher, was a poor justification for failing to do so,” Judge Lagrange said.
The court also found that the company’s ongoing use of outside contractors made its decision to retrench a permanent employee who wanted that work even harder to justify.
Consultation process was too rushed
The court also found that the consultation process was not fair. Although the company had spent months thinking about how to avoid retrenchments, the actual consultation process lasted only about a week. Dean’s request to delay so she could get legal advice was turned down.
The court said that employees affected by the retrenchments were not given enough time to consider proposals or come up with alternatives. The company also limited access to the financial information employees asked for during consultations.
The final selection matrix was only revealed just before the assessments began, and Dean’s suggestion for an alternative matrix was rejected after the assessments were already done. Judge Lagrange said the process showed “scant regard” for what employees had to say.
Dismissal declared unfair
The Labour Court ruled on 15 September 2020 that Dean’s dismissal was unfair, both in terms of the process and the reasons behind it.
Dean chose not to return to her job. Instead, she received 12 months’ compensation, based on her salary before the pay cut of R13,250 a month, which came to R159,000. Cape Town City Ballet was also told to recalculate and pay her the difference in her severance and notice pay using her full, unreduced salary.
The company was also ordered to pay half of Dean’s legal costs.
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