IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS906/20
In the matter between:
VWSACRU OBO MEMBERS Applicant
and
SG COAL (PTY) LTD Respondent
Heard: 31 October 2022
Delivered: 10 January 2024
Summary: Trial proceedings – dismissal for operational requirements – force
majeure declared by major client compelling employer to retrench employees
working in terms of the contract with that client.
JUDGMENT
MKWIBISO, AJ
Introduction
[1] In this matter the applicant s, being 12 individuals represented by their union,
allege that their dismissal by the respondent for operational reasons was
substantively and procedurally unfair. The applicants seek reinstatement with
retrospective effect.
[2] The respondent contents that the dismissal for operational reasons was
substantively and procedurally fair.
[3] The parties each called one witness to deal with the issue of the fairness of
the dismissal. The parties further relied on a common evidence bundle that
was indexed and paginated by the respondent’s legal representatives.
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Relevant facts and evidence
[4] It is common cause that the respondent dismissed 160 employees on 03 June
2020, due to operational requirements. The 12 applicants in this matter were
part of the 160 employees who were dismissed.
[5] During the trial, the respondent relied on the testimony of Ms Lanette Fourie ,
who was its Human Resources Manager and had dealt with the dismissal of the
applicants in 2020.
[6] Ms Fourie testified that she had been employed by the respondent since May
2010. She stated that the reason for the dismissal of the applicants for
operation requirements was that a major client of the respondent, namely
Msobo Coal (Pty) Ltd had declared a force majeure on 15 April 2020 in terms of
a letter that read as follows:
“FORCE MAJEURE NOTICE
We refer to the signed agreement between Msobo Coal (Pty) Ltd (“MSOBO”)
and SG Coal (Pty) Ltd (“Service Provider”).
As you are aware, and because of the Covid -19 virus, a “state of disaster” was
declared in terms of Section 27(1) of the Disaster Management Act, No 57 of
2002 (“The Disaster Management Act”), various regulations have been
promulgated under the Disaster Management Act, and President Cyril
Ramaphosa on 23 March 2020 declared a “National Lockdown” from midnight
on Thursday, 26 March 2020 until 16 April 2020, the (“Initial Lockdown Period”).
This “Initial Lockdown Period” has subsequently been extended until 30 April
2020, the “Extended Lockdown Period.
As you are further aware, the “National Lockdown Period” falls within the
definition of a Force Majeure Event in terms of the agreement which is
unforeseeable circumstances beyond the control of Msobo.
MSOBO hereby notifies you that it is declaring a Force Majeure Period until 30
April 2020 (“Extended Lockdown Period”) or until the date on which the “National
Lockdown Period” is lifted by Government and the economic activity of the
country can return to normal.
MSOBO has not yet been able to quantify the exact impact of the Force Majeure
Events on the Agreement but, will advise you of such impact as soon as same
become evident.
MSOBO hereby records that it will do everything reasonably possible to mitigate
the effects of the Force Majeure Events and perform in accordance with its
obligations in terms of the Agreement. MSOBO will continue to keep you
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apprised of the impact of the Force Majeure Events on its performance
obligations.
All MSOBO rights remain strictly reserved”.
[7] Ms Fourie stated that there was no option but to retrench employees who were
working on the contract with Msobo Coal because there would be no income
during the period of the declared force majeure. Msobo Coal later extended the
period of the force majeure and informed the respondent that it had no way of
advising the respondent of when normal duties would be resumed.
[8] Ms Fourie referred to three SMS es that were sent to employees regarding the
retrenchment. The SMSes read as follows:
“In the event of a retrenchment, the method applied will consist of the following
measures in order of priority: Voluntary Retrenchments Last in First Out (LIFO)
Operational Requirement Disciplinary Records Severance pay will be calculated
in the following manner: Final salary? Unutilised leave of days will be paid out by
the NBCRFLI. Two weeks? Notice pay worked.? Not worked. One week for
every year completed service. Currently 160 employees will be affected. Should
the retrenchments take place, it will be communicated within the following week”;
“Whilst management will continue to explore other options to avert further
negative financial performance and impact, management will also explore all
alternatives to staff reduction. However, failure to achieve this may result in
retrenchments”; and
“The company would also offer re -employment first to retrenched employees
upon opportunities present. You are welcome to contact the HR Department with
any ideas how to avert/reduce the retrenchments before 19 May 2020 .
Management reserves the right to accept any of these ideas or not. Regards
Management”.
[9] Ms Fourie testified that this was the best way of communicating with the
employees at the time. The employees, including the applicants herein, did not
respond by suggesting any alternatives to dismissal.
[10] When she was cross-examined, she was asked to explain the meaning of force
majeure, to which she responded by stating that it is when a company cannot
perform its duties due to circumstances beyond its control, such as the
lockdown implemented as a result of the COVID -19 pandemic. She was further
asked whether Msobo Coal had resumed operations, to which she responded
that “they resumed duties only a long time … I cannot say when exactly they
resumed duties but it was not during COVID ”. When further questioned on this
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issue, she said she worked in Human Resources and was not informed when
the mines resume duties. She said some of the retrenched employees were re -
hired when Msobo Coal resumed operations, but she did not know the criteria
that was used when re-hiring.
[11] It was never put to her that Msobo Coal had not declared a force majeure ,
during which period the respondent could not work and generate income on the
contract with Msobo Coal. It was not put to her that the respondent continued
its operations in terms of its contract with Msobo Coal with or without the
declaration of force majeure . It was not put to her that the respondent was
expected to continue paying the applicants their remuneration despite the fact
that they were not working and the respondent’s oper ations at Msobo Coal had
stopped due to the force majeure. Importantly, it was not put to her that any
alternatives, such as laying off of employees for the duration of the force
majeure, were advanced by the applicants before or after the decision to
retrench them. Also of importance is that it was never put to her that there were
any severance payments that were outstanding to the applicants. Indeed, much
of her testimony was unchallenged, to the extent that the respondent’s legal
representative rightfully elected to not engage in any re -examination once
cross-examination had been concluded. The respondent closed its case after
Ms Fourie’s testimony.
[12] The applicants relied on the testimony of Mr Thabo Xolani Mkhabela. It is not
necessary to reflect his testimony in any detail, as much of the propositions he
put forward were not put to the respondent’s witness. When asked under cross-
examination why his legal representative did not put his version to the
respondent’s witness, he said he did not know. However, he later confirmed
that everything his legal representative had done was according to the
applicants’ instructions. He complained about procedural u nfairness,
contending that the applicants were not issued with letters in terms of section
189(3) of the Labour Relations Act 66 of 1995 (“the LRA”).
Analysis
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[13] Section 189A of the LRA applied to the dismissals in this matter. The
respondent employed more than 50 employees. Further, the respondent
contemplated dismissing , and ultimately dismissed , 160 employees. This
being the case, it was not open to the applicants to have this Court adjudicate
a dispute about the procedural fairness of the dismissal, as contemplated in
section 189A(18) of the LRA. 1 The applicants were, thus, restricted to a claim
of substantive unfairness.
[14] Substantively, the applicants failed to put any version of substance to the
respondent’s witness. In this regard, it is trite that a failure to put one’s version
to opposing witnesses means such a version cannot be accepted. In Masilela
v Leonard Dingler (Pty) Ltd,2 the Court held the following:
“[28] … It is trite that if a party wishes to lead evidence to contradict an
opposing witness, he should first cross -examine him upon the facts
that he intends to prove in contradiction, to give the witness an
opportunity for explanation. Similarly if the court is to be asked to
disbelieve a witness, he should be cross -examined upon the matters
that it will be alleged make his evidence unworthy of credit. In Small v
Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:
“… It is grossly unfair and improper to let a witness's evidence
go unchallenged in cross -examination and afterwards argue
that he must be disbelieved”.’
[15] In President of the Republic of South Africa and Others v SARFU and
Others,3 the Constitutional Court held that:
“[61] … If a point in dispute is left unchallenged in cross -examination, the
party calling the witness is entitled to assume that the unchallenged
witness's testimony is accepted as correct. This rule was enunciated
by the House of Lords in Browne v Dunn and has been adopted and
consistently followed by our courts”.
1 NUMSA & others v SA Five Engineering & others [2005] 1 BLLR 53 (LC); (2004) 25 ILJ 2358 (LC) at
paras 7 and 8.
2 Masilela v Leonard Dingler (Pty) Ltd [2004] 4 BLLR 381 (LC); (2004) 25 ILJ 544 (LC) at para 28.
3 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 11999 (10) BCLR 1059 (CC), 2000 (1) SA 1 at para 61.
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[16] The Labour Appeal Court, in Ekurhuleni Metropolitan Municipality v SA Local
Government Bargaining Council & others,4 recently confirmed the need to put
one’s version when cross -examining and rejected the defence of the
employee in that case on the following basis:
“[26] The third respondent failed to make it clear to the complainant in
cross-examination the precise nature of the imputation raised, in the
sense not only that her evidence was to be challenged but how this
was to be done. It was not put to her that her version was false or that
it was denied by the third respondent. The result was that she was not
given the opportunity to respond to such a challenge, including to
deny any suggestion as to the falsity of her version”.
[17] The respondent’s version that it was not able to conduct its operations in
terms of the Msobo Coal contract, under which the applicants were employed,
with consequent financial hardship, must be accepted as it was not disputed .
Under these circumstances, the respondent had a valid reason to
contemplate retrenching the applicants. When the applicants were invited to
provide alternatives to retrenchment, they did not accept the invitation and
they provided no alternatives. They have no one to blame but themselves.
[18] It was not the applicants’ case at the trial that the respondent should have
considered laying -off employees for a limited duration consistent with the
period during which Msobo Coal had declared force majeure , instead of
opting for retrenchment.5 The respondent was, thus, not given an opportunity
to respond to such an averment and it would not be appropriate to make any
finding on an issue that was not canvassed at the trial.
[19] The issue whether the respondent should have reinstated or re-employed the
applicants after the resumption of operations by Msobo Coal , having re -hired
some of the retrenched employees, is not before me as it falls outside the
dispute that was conciliated. In terms of section 186(1)(d) of the LRA, such a
failure to reinstate or re -employ would be a different form of dismissal to the
4 Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and
Others (2022) 43 ILJ 825 (LAC); [2022] 4 BLLR 324 (LAC) at para 26.
5 SACCAWU obo Mvuyana and Others v Oyster Box Hotel (Pty) Ltd (2018) 39 ILJ 2337 (LC); [2019]
JOL 42245 (LC).
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one occasioned by the retrenchment of the applicants. Section 190(2)(c) of
the LRA provides that “ if an employer refuse d to re-instate or re -employ the
employee, the date of dismissal is the date on which the employer first
refused to re-instate or re-employ the employee”.
[20] Under all the circumstances, I find that the applicants’ dismissal was
substantively fair.
Costs
[21] The general approach in this Court is to not award costs . I see no compelling
reason to depart from that approach in this matter.
[22] In the premises, I make the following order:
Order
1. The applicants’ unfair dismissal referral is dismissed.
2. No order as to costs.
_________________________
VG Mkwibiso
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Adv Frans Mahome
Instructed by: Khomola Attorneys Inc
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For the Respondent : Mr C J Geldenhuys of C J Geldenhuys Attorneys