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[2024] ZALCJHB 136
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Rachoene and Others v G4S Secure Solutions (Pty) Ltd (J3933/18) [2024] ZALCJHB 136 (18 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: J 3933 / 18
In
the matter between:
MORWASEGOSELE
JOHANNES RACHOENE
AND
17 OTHERS
Applicants
And
G4S
SECURE SOLUTIONS (PTY)
LTD
Respondent
Heard
:
6 November
2023
Delivered
:
18
March 2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 18 March 2024
Summary:
Operational requirements – redundancy of position –
meaning of – employees’ positions
redundant
Operational
requirements – alternative positions – alternative
positions available – employees failing / refusing
to apply for
alternative positions – no proper / justified basis for
employees failing / refusing to apply for alternative
positions –
employees’ retrenchment justified and fair
Operational
requirements – rationale for retrenchment – employer
losing large contract – proper rationale for
retrenchment shown
Operational
requirements – procedural fairness – s 189A finds
application – employees cannot challenge procedural
fairness
where s 189A applies – Court having no jurisdiction to decide
procedural fairness
Dismissal
– operational requirements – dismissal substantively fair
– claim dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
From
the outset, it must be stated that when this matter finally came
before Court for adjudication, only two of the individual
applicants
still remained in the matter. All the other individual applicants
were no longer participating in and pursuing these
proceedings, and
as such, are not before Court. Accordingly, this judgment only
relates to and applies to the remaining two individual
applicants,
being Morwasegosele Johannes Rachoene (Rachoene) and Molahlogo
Delmond Sebone (Sebone), referred to in this judgment
either by name,
or jointly as ‘
the
employees
’.
[2]
The
employees were dismissed by the respondent for operational
requirements, and they were part of an unfair dismissal dispute
referred to this Court in terms of section 191(5)(b) of the Labour
Relations Act (‘LRA’)
[1]
,
following unsuccessful conciliation at the Commission for
Conciliation, Mediation and Arbitration (CCMA).
The
employees represented themselves throughout these proceedings, and
were party to a statement of claim filed on 12 November 2018.
The
employees contended that their dismissal was both substantively and
procedurally unfair. They initially prayed for reinstatement
as
consequential relief, but when this matter was heard, they had both
found alternative employment and no longer sought reinstatement,
but
only compensation.
[3]
The
respondent, on the other hand, and in its answering statement,
contended that it had a proper financial rationale to retrench
the
employees following the loss of a major contract, rendering the
positions of the employees redundant. The respondent further
contended that there were alternative positions available to the
employees which they could have applied for, but they failed to
do
so. Where it came to procedural fairness, the pertinent question was
whether section 189A of the LRA applied, and therefore
whether it was
competent to challenge procedural fairness in these proceedings.
[4]
The
matter came before me on trial on 6 November 2023. At the
commencement of the proceedings, the respondent sought to raise a
challenge with regard to the jurisdiction of the Court to entertain
the matter, on the basis that the employees had signed agreements
in
full and final settlement of the dispute. I dismissed this
jurisdictional objection and determined that the Court did have
jurisdiction to entertain this matter. The reasons for this finding
will be dealt with later in this judgment.
[5]
The
matter then continued with evidence being presented by the respondent
in the form of two witnesses testifying on its behalf,
whilst the
employees testified on their own behalf. At the conclusion of the
hearing, I reserved judgment. I will now decide this
matter by first
setting out the
relevant
facts.
The
relevant background
[6]
The
respondent conducts business a contract security services provider.
It employs security guards in its business. It
inter
alia
contracts with customers for on-site contract security services, with
the security guards employed by it being deployed on the
customer
sites to render the security services. The employees were two of
these security guards. Rachoene was a grade C security
guard, whilst
Sebone was a grade A security guard.
[7]
It
was common cause that the employees were deployed (placed) at the
respondent’s Silver Lakes Residential Estate (Silver
Lakes)
contract. It was a fairly large contract, requiring close on 100
personnel of the respondent. This was a contract in the
respondent’s
Pretoria (Tshwane) region. It was also common cause that Silver Lakes
in 2018 put the security contract out
for open tender, and the
respondent also tendered to retain the contract. However, the
respondent was not successful, and on 1
June 2018, the respondent was
given written notification by Silver Lakes that the respondent’s
entire security services contract
with it would finally terminate on
31 August 2018.
[8]
Another
common cause fact was that all the security guards of the respondent
deployed on the Silver Lakes contract were issued with
notices of
intention to retrench as contemplated by section 189(3) of the LRA,
on 7 June 2018. The notice itself was presented
as part of the
documentary evidence, and was not contested. In terms of the notice,
the reason for possible dismissal is indicated
to be the loss of the
Silver Lakes contract as from 31 August 2018. It was also indicated
that the respondent would seek alternatives
to mitigate
retrenchments. But importantly, the notice records that:
‘
The
company has dismissed in the 12 months preceding this notice more
than 50 employees due to its operational requirements. As
a result,
we envisage that the above matter should be conducted in accordance
with the provisions of Section 189A of the Labour
Relations Act (66
of 1995).’
It
was undisputed that the respondent employed more than 50 employees,
with the notice itself indicating that the respondent employed
a
total of 9 441 employees. The section 189(3) notice was also
sent to two trade unions who had membership at the respondent,
being
AMCU and SATAWU. In terms of the notice, it was indicated that four
consultations were envisaged with employees, being 29
June, 13 July,
31 July and 10 August 2018.
[9]
In
terms of the pre-trial minute, it was not disputed that consultations
did ultimately take place on 20 July, 31 July, 29 August,
and then
finally with batches of the affected security guards in the period 3
– 6 September 2018. It was also undisputed
that the employees
only attended the last consultation on 4 September 2018. According to
the employees, the representatives that
attended the consultations
purportedly on their behalf were not elected by them but were
appointed by the respondent. It also turned
out that Sebone was an
AMCU member and a shop steward, and that AMCU was a party to the
consultations.
[10]
Turning
then to the consultations themselves, the first consultation was held
with two representatives of the employees, being Vincent
Dlamini
(Dlamini) and T Mavula (Mavula), on 20 July 2018. According to
Lamprecht, who was the respondent’s general
manager for
Pretoria responsible for the Silver Lakes contract, the issue of
alternatives was specifically dealt with in this consultation.
It was
explained that the respondent would explore if there were alternative
positions available on other contracts, even where
such contracts
were in other regions. Specific possible alternatives were mentioned.
This included possible positions at the Bidvest,
MTN, and Huawei
contracts. It was agreed that all possible available positions would
be circulated by way of written notices to
the security guards. It
was also indicated in the consultation that all of the security
guards would be entitled to attend the
consultations themselves, if
they wished. The employees however did not attend this consultation.
[11]
Flowing
from the aforesaid consultation, alternatives were actually
circulated to all the security guards that were affected on
the
Silver Lakes contract. In a written bulletin sent on 20 July 2018 to
all security guards, it was indicated that the respondent
had a
number of vacant positions available, and an opportunity would be
provided to such security guards to be transferred (voluntarily)
to
such positions, subject to the specific proviso that they apply for
the positions they were interested in. The positions would
be made
available on a first come first served basis, and subject to the
employees satisfying the appointment requirements. There
were a
number of grade C positions available, being 50 positions at various
MTN sites in Gauteng and Polokwane, 20 positions at
Huawei in
Woodmead, 11 positions at Tharisa in Rustenburg, and 5 positions at
SAB in Garangkuwa and Waltloo. There were also 8
grade B positions
available at MTN and Huawei. The deadline for application for any of
these positions was 1 August 2018.
[12]
The
next consultation was held on 31 July 2018. It was once again
attended by Dlamini and Mavula as representatives, but on this
occasion some of the individual security guards also attended. The
consultation in essence focussed solely on the issue of
alternative
positions. The employees did not attend.
[13]
Following
the consultation of 31 July 2018, and on 1 August 2018, the
respondent again circulated a written bulletin to all security
guards. The bulletin was in more or less identical terms to the one
circulated on 20 July 2018, however some of the available positions
changed. There were still the 50 grade C positions at MTN, 20 grade C
positions at Huawei, 11 grade C positions at Tharisa, and
the 8 grade
B positions at MTN and Huawei. What changed was that there were now
also 8 grade A positions at MTN and only 2 grade
C positions
available at SAB Garangkuwa. The deadline for application was 10
August 2018.
[14]
Despite these
positions having been made available, the employees never applied for
any of these positions. In fact, and according
to their testimonies,
they believed that they were entitled to be simply transferred into
positions at the instance of the respondent.
Lambrecht however
explained that is not how it works, because an employee had to
indicate a willingness to take up a post first,
because work
circumstances, conditions end even benefits could vary from site to
site. There may also be qualifying requirements,
as stipulated by a
customer, that need to be met. According to Lambrecht, it was
essential that affected security guards had to
apply for available
posts, and most of them did, resulting in them being successfully
placed.
[15]
On
22 August 2018, there was yet another offer of alternative positions
circulated to all Silver Lakes security guards. These alternative
positions were now in the form of vacancies related to positions
available outside the general Pretoria (Tshwane) area, and came
with
a once off transfer allowance of R1 200.00. These positions were
all grade C positions, with 4 positions being available
at Goldfields
Mine, 3 positions in Nelspruit, 4 positions in Klerksdorp, 1 position
at Venetia Mine, 3 positions at MWS, and 1
position in Marble Hall.
There were also 6 grade C positions at Out of Bounds in Pretoria
East, which was within the region.
[16]
On
27 August 2018, Rachoene indicated that he was interested in a
position at Out of Bounds in Pretoria East. However, and
unfortunately,
this did not turn out to be a viable alternative for
him. As Lambrecht explained, when the time came for filling these
vacancies,
the customer (Out of Bounds) insisted that some of the
employees from the former service provider from whom the respondent
secured
the contract had to be taken over by the respondent, which
effectively took most of these vacancies off the table, and Rachoene
could not be accommodated at that site.
[17]
Where
it came to Sebone, he indicated that he had no interest in any of the
positions. As far as Sebone was concerned, he was a
grade A security
guard, and virtually all the positions that were available were grade
C positions. As a grade A security guard,
Sebone could competently
fulfil a grade C position, however he indicated that he had no
interest to do so, as it would involve
lesser pay.
[18]
The
next consultation was then held on 29 August 2018, attended by the
two employee representatives and some of the individual security
guards as well. Again, the employees did not attend. In this
consultation, it was agreed that LIFO would be applied where
employees
have applied for available positions and there were more
employees than available positions. It was also explained that
severance
packages would not be paid if employees were offered
alternative positions and did not take those up.
[19]
Final
consultations took place in the period between 4 and 6 September 2018
with groups of all the affected security guards. Rachoene
and Sebone
was part of the group consulted on 4 September 2018. Following this
final consultation, and on 10 September 2018, all
the security guards
being retrenched were presented with a letter of termination of
employment due to retrenchment (the retrenchment
letter). On 11
September 2018, the retrenched security guards were presented with a
document called a ‘
retrenchment
agreement
’
(the retrenchment agreement), and were required to sign it. This
included the employees, who signed their agreements on
11 September
2018. The retrenchment agreement was never discussed with them.
[20]
The
retrenchment letter recorded that the employees did not apply for any
of the vacancies presented to them in the course of the
consultation
process, and therefore it was viewed as a refusal to accept an offer
of alternative employment. It was further stated
that as a result,
the employees would not receive severance pay. The date of
termination of the service of the employees was reflected
to be 6
September 2018. The retrenchment agreement in essence mirrored what
was contained in the retrenchment letter, with the
proviso that it
was recorded in the retrenchment agreement that all payments to the
employees shall be in full and final settlement
of any claims arising
out of the employment relationship between the parties. In effect,
the employees were paid their statutory
prescribed notice pay, leave
pay, and pro-rata bonus in full and final settlement.
[21]
The
employees then referred an unfair dismissal dispute to the CCMA The
dispute was unsuccessfully conciliated and then pursued
to
arbitration. In a jurisdictional ruling dated 29 October 2018, the
CCMA directed that this dispute be referred to the Labour
Court,
leading to the matter now before this Court.
Jurisdiction
[22]
As
alluded to above, the respondent raised a jurisdictional objection.
In this regard, the respondent relied on the retrenchment
agreement
concluded with the employees on 11 September 2018. In terms of clause
3 of such agreement, it was agreed that the employment
of the
employees would terminate based on a ‘
retrenchment
agreement
’.
In clause 5, it is then provided that payment made to the employees
in terms of the agreement are ‘…
in
full and final settlement of all and any claims the Employee may have
against the Employer arising out of the termination of
the service
contract or service relationship …
’,
and that the respondent has ‘…
discharged
all and any legal obligations that exist in respect of the Employee
as that he has no other claim against the Employer
arising out of the
service contract.
’
[23]
Whilst
it appears
ex
facie
the retrenchment agreement that the unfair dismissal claims of the
employees against the respondent have been fully and finally
settled,
I do not believe that this, in reality, is the case. I am convinced
that this retrenchment agreement was nothing else
but a sham forced
upon the employees at the time of termination of employment to use as
some kind of defence should employees decide
to pursue the matter
further. There is no evidence that the content of the retrenchment
agreement was ever negotiated or discussed
with the employees, or
that they were even given an option to sign it or not. It was not
tabled in any retrenchment consultation.
It was certainly never, on
the evidence, even discussed with the employees at the time when it
was presented to them for signature.
In my view, it is clear from the
evidence that these agreements were simply presented to the employees
immediately following the
retrenchment letter and they in essence had
no option but to sign the same. This cannot be a
bona
fide
settlement agreement and the retrenchment agreement would therefore
be, in my view, invalid.
[2]
As
held in
May
v Mannesman Demag
[3]
:
‘
In
my view it was unfair to present the applicant with a fait accompli
and such an agreement. It is also questionable, whether
an
employee who is unrepresented at a meeting, could be required to sign
away, so to speak, his or her rights conferred by the
Labour
Relations Act. …’
[24]
Ordinarily,
voluntary retrenchment agreements are concluded in the course of a
retrenchment consultation process as an alternative
to forced
retrenchment, and would be coupled with some kind of benefit or
incentive for the employee concerned to accept the same.
In this
case, and by the time the retrenchment agreement was first presented
to the employees, the ship had sailed, as the retrenchment
process
was concluded and they had even already been given notice of
termination of employment due to retrenchment. The retrenchment
letter records that the employees were ‘
given
notice of termination in terms of section 189A of the Labour
Relations Act [66 of 1995] and in terms of section 37(1) of the
Basic
Conditions of Employment Act [75 of 1997]
’.
Such a notice is entirely inconsistent with an agreed termination of
employment as would be contemplated by a retrenchment
agreement. The
retrenchment agreement
in
casu
was
presented against the backdrop of
a
fait accompli
.
[25]
And
finally, there no advantage of any kind accruing to the employees for
signing the retrenchment agreement. The payments they
received under
the retrenchment agreement was nothing else but what they would be
statutorily entitled to under the Basic Conditions
of Employment Act
(BCEA)
[4]
. They were paid their
notice pay, their leave pay, and their pro-rata bonus.
[5]
I am of the view that an employee cannot settle for that which the
employee is legally entitled to as a statutory minimum.
[6]
[26]
For
the reasons as set out above, I conclude that the retrenchment
agreement concluded with the employees on 11 September 2018 cannot
serve to non-suit them where it comes to their unfair dismissal
disputes. These agreements are a sham, and I do not consider them
to
be valid and binding on the employees. The jurisdictional point
raised by the respondent must therefore be rejected.
Procedural
fairness
[27]
In
this case, there can be no doubt that section 189A of the LRA found
application. It is specifically referred to in the section
189(3)
notice and in the retrenchment letter. However, what must remove any
doubt in this regard is simply the undisputed number
of employees
employed by the respondent, being 9 441, and the fact that more
than 50 employees had already been retrenched
in the preceding 12
months, before the current process even started. In giving evidence,
Lambrecht testified that section 189A,
considering the number of
affected employees, applied in this case, and he was not challenged
on this under cross examination.
[28]
Where
it comes to the application of section 189A, this is determined by
numbers. In simple terms, and of relevance
in
casu
,
section 189A(1) provides that where an employer employs more than 50
employees and the employer contemplates dismissing at least
50
employees (or has dismissed at least 50 employees due to operational
requirements in the preceding 12 months) if the employers
employs
more than 500 employees, the section applies.
[7]
Considering the above, and on the numbers, there is no doubt that
section 189A applies.
[29]
It
is not up to the parties in a retrenchment / restructuring process to
agree whether section 189A applies or not. It is automatically
triggered if the thresholds as specified in the section are met.
[8]
The determination as to whether section 189A applies is thus
dependent upon answering a number of questions of fact. First, does
the employer employ more than 50 employees? Second, and depending on
the number of employees employed by the employer, did the
employer
contemplate retrenching the requisite number of employees as
reflected in section 189A(1)(a)(i) to (v)?
[9]
If both questions are answered in the affirmative, section 189A,
in
toto
,
applies.
[10]
This is certainly
the case
in
casu
.
[30]
Once
section 189A applies, this has an important consequence where it
comes to the issue of this Court determining the fairness
of any
dismissals emanating from this section. This consequence is that
substantive and procedural fairness are separated. In the
case of
substantive fairness, this is dealt with in the ordinary course by
way of an unfair dismissal dispute referred to this
Court in terms of
section 191(5)(b) as read with section 191(11)(a) of the LRA.
[11]
Employees of course may also strike about this dismissal.
[12]
[31]
Where
it comes to procedural fairness, and should there be any issue or
dispute about whether the restructuring / retrenchment process
is
being dealt with by the employer in a procedurally fair manner, this
must be pro-actively pursued to this Court by way of an
application
in terms of section 189A(13) of the LRA.
[13]
The idea is to have expeditious and pro-active judicial intervention
to ensure compliance with a fair process, and so avoid an
ex
post facto
autopsy on a point by point basis of the retrenchment exercise, long
after the fact, to decide whether it was procedurally fair,
[14]
and if found to be unfair, awarding some compensation as a
result.
[15]
The point is that
the Court in a section 189A(13) application, acting pro-actively, can
reverse or stop any unfair process to ensure
that it is done
properly, and even reinstate dismissed employees to ensure that they
are consulted properly.
[32]
Because
of this separation of processes relating to determining substantive
and procedural fairness where it comes to dismissals
under section
189A of the LRA, the Labour Court is deprived of jurisdiction to
entertain a dispute concerning the procedural fairness
of a
dismissal, where the unfair dismissal dispute is brought before the
Court in terms of section 191(5)(b) as read with section
191(11) of
the LRA. The Court can only consider substantive fairness. This is
evident from
Section
189A (18), which provides:
‘
The
Labour Court may not adjudicate a dispute about the procedural
fairness of a dismissal based on the employer's operational
requirements in any dispute referred to it in terms of section
191(5)(b)(ii).'
[33]
The
Constitutional Court in
Steenkamp
and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
[16]
said
the following where it comes to section 189A(18):
‘…
only
a dispute concerning whether there is a fair reason for dismissal may
be referred to the Labour Court for adjudication. In
fact subsection
(18) precludes the Labour Court from adjudicating any dispute about
the procedural fairness of a dismissal for
operational requirements
referred to it in terms of s 191(5)
(b)
(ii).
… Subsection (18) may seem very drastic and harsh on employees
who may be having a dispute with their employer concerning
the
procedural fairness of their dismissal. However, it will be seen
that, when read with subsection (13), it is not harsh at all.
Subsection (13) provides extensive protections to employees where the
employer has failed to comply with a fair procedure.’
[34]
Following
the judgment of the Constitutional Court in
Edcon
,
the same matter, but this time under the auspices of section
189A(13), came before the Labour Appeal Court again in the subsequent
judgment in
Edcon
Ltd v Steenkamp and Others
[17]
(
Edcon
(2)
).
After referring to section 189A(18), the Court in
Edcon
(2)
held:
[18]
‘
There
could be no clearer indication that after a dismissal had taken place
under the stipulated circumstances of operational requirements
of an
employer, the Labour Court is bereft of jurisdiction, save in respect
of substantive fairness. That express exclusion of
jurisdiction to
evaluate procedural unfairness ex post facto is in stark contrast to
the jurisdictional competence of the Labour
Court in other kinds of
dismissal disputes.
This
policy choice in the LRA goes hand in hand with what can be described
as a partial claw-back of jurisdiction. This claw-back
is the burden
of s 189A(13) …’
[35]
In
casu
,
the current dispute before this Court was indeed brought under
section 191(5)(b) as read with section 191(11) of the LRA. As a
result, the employees simply cannot challenge procedural fairness in
the current proceedings, and this Court has been deprived
of
jurisdiction to consider the same. The only manner in which the
employees could have challenged procedural fairness is by way
of an
application in terms of section 189A(13) of the LRA, which they never
brought. The Labour Court has been consistently following
this
approach since the introduction of section 189A into the LRA in
2002.
[19]
And as recently said
in
Banking
Insurance Finance and Assurance Workers Union on Behalf of Miya and
Another v Scorpion Legal Protection (Pty) Ltd
[20]
:
‘
The
Constitutional Court made it clear that, although a clear policy
decision has been made to remove claims of procedural unfairness
from
the ex post facto jurisdictional competence of the Labour Court,
employees are not left without a remedy as they may approach
the
Labour Court in terms of s 189A(13) of the LRA for an order
compelling the employer to comply with a fair procedure. Where
employees have already been dismissed, the Labour Court has the
additional power in terms of s 189A(13)
(c)
of
the LRA to reinstate such an employee to allow for the consultation
process to run its course. Only where these orders
are not
appropriate, may the Labour Court, where it is appropriate to do so,
order compensation in terms of para
(d)
.
The
applicant employees' retrenchment falls within the ambit of s 189A of
the LRA and, if they wanted to challenge the procedural
fairness of
the retrenchment process, the remedy at their disposal was to follow
the process provided for in s 189A(13) of the
LRA. …’
[36]
Accordingly,
I am unable to consider any case by the employees that their
dismissal was procedurally unfair. I will thus make no
finding on
procedural fairness, as such issue in dispute is simply not
competently before me. As said in
SA
Commercial Catering and Allied Workers Union and Others v Southern
Sun Hotel Interests (Pty) Ltd
[21]
:
‘…
I
set out as succinctly as possible what I understand s 189A (18) of
the LRA to mean as a matter of plain English and in the context
of
the structure of the statute. This is that, in retrenchments that
fall within the ambit of s 189A, enquiries into the procedural
and
substantive fairness of a dismissal are to be dealt with separately.
Trial procedures, which are to be used to determine the
substantive
fairness of s 189A dismissal, are not to be burdened with claims
about the procedural fairness of the same dismissal.’
Substantive
fairness
[37]
The
issue of whether a dismissal for operational requirements is
substantively fair is decided by way of answering what is called
a
general question and a specific question. As said in
Chemical
Workers Industrial Union and Others v Latex Surgical Products (Pty)
Ltd
[22]
:
‘
Whether
or not there was a fair reason for the dismissal of the individual
appellants relates to a general question and a specific
question. The
general question is whether or not there was a fair reason for the
dismissal of any employees. The specific one is
whether there was a
fair reason for the dismissal of the specific employees who were
dismissed, which in this case, happened to
be the individual
appellants. The question of a fair reason to dismiss the specific
employees who were dismissed goes to the question
of the basis upon
which they were selected for dismissal whereas the other question
relates to whether or not there was a reason
to dismiss any employees
in the first place.’
[38]
The
general question in
Latex
supra
must, in my view, be undoubtedly answered in favour of the
respondent. I say this because, firstly, it simply cannot be
contradicted
that the respondent lost a contract with a customer,
Silver Lakes, on which contract the employees were placed. The loss
of such
a contract would constitute a proper financial rationale for
an employer to seek to reduce costs.
[23]
This in turn would directly impact on the positions of all the
security guards on the contract (site), rendering all those positions
redundant.
[24]
It follows that
the respondent had a valid and fair rationale to retrench the
employees. Despite disputing the rationale for retrenchment
in their
pleadings and the pre-trial minute, the employees, when giving
evidence, did not really dispute the same, and in the end
conceded
this as a proper rationale for retrenchment.
[39]
This
matter in reality turned on answering the specific question in
Latex
supra
. As
touched on above, the crux of the case of the employees was that they
should simply be automatically transferred to another
site at the
instance of the respondent, and not be subjected to a retrenchment
process. In the pre-trial minute, it is recorded
that the employees
disputed the reason for retrenchment because ‘
there
were new sites available for the Applicants to be placed at
’.
The statement of case of the employees reflected that: ‘
Employer
informed us verbally all affected employees that there are sides in
various province, and normally employer used to transfer
employees to
the available sides but in this issue employees were instructed to
apply …
’
(sic). In fact, both employees in evidence suggested that if the
respondent decided to transfer a security guard and he
or she
refused, that guard should be disciplined.
[40]
However,
and as Lamprecht explained, the respondent could never do this, as it
would in effect amount to arbitrarily selecting employees
for
placement in vacancies in circumstances when other employees could
then lose their jobs, and that will never be fair. Also,
there may
not be enough vacancies available for the number of redundancies
resulting from the loss of the contract. Therefore,
and according to
Lamprecht, in cases such as these where a whole contract is lost, the
respondent would always follow an operational
requirements process.
The disciplinary process would not apply in such an instance. He also
explained that the only occasion an
employee may be directly
transferred to a vacancy is where individual vacancies may arise at a
particular site because, for example,
an employee has been dismissed
at that site. But this would never apply where it came to the loss of
an entire customer contract
together with all the redundancies that
come about as a result. Lamprecht specifically said that in the 14
years he had spent being
responsible for the region, the process
always was that where a contract was lost, a retrenchment process
would be initiated, and
then, pursuant to that process, the
respondent would make all vacancies available to affected employees,
which employees would
then indicate their interest in the available
vacancies by applying for the same. I do not see anything wrong with
this process
adopted by the respondent as set out above. In
SA
Breweries
(Pty) Ltd v Louw
[25]
the
Court held:
‘
An
employer, who seeks to avoid dismissals of a dislocated employee, and
who invites the dislocated employee to compete for one
or more of the
new posts therefore does not act unfairly, still less transgresses ss
189(2)
(b)
or
189(7). The filling of posts after a restructuring in this manner
cannot be faulted. Being required to compete for such
a post is not
a
method of selecting for
dismissal
; rather it is a legitimate
method of
seeking to avoid the need
to dismiss
a dislocated employee
…’
[41]
The
above process adopted by the respondent would of course seek to avoid
retrenchment in the form of providing alternatives. Selection
would
only really come into the equation if all the affected employees
cannot be accommodated in alternative positions, and a selection
exercise must be carried out between them. In this case, this was not
an issue as the employees would be placed. Because of this,
the issue
of fair selection criteria was not in issue. Lamprecht explained that
on most occasions, the respondent is quite successful
in
accommodating employees in other vacancies at other sites.
It
appears that it was agreed in the consultation process that the
respondent would disclose all the vacancies in writing and invite
the
security guards on the Silver Lakes contract to apply for the same.
This was done on several occasions, being 20 July, 1 August
and 22
August 2018. There was on each occasions a deadline stipulated by
when an application for a position had to be made. In
simple terms,
the very objective was to avoid the dismissal of security guards
whose positions had become redundant due to a loss
of a service
agreement with a customer, and that retrenchment would only be
considered once this avenue was exhausted. In
Louw
supra
[26]
the
Court has the following to say:
‘…
Axiomatically,
an incumbent of a redundant post is not automatically dismissed; that
person is merely dislocated and only after
the opportunities to
relocate that person in another suitable post have been explored and
exhausted, may they be fairly dismissed
…’
[42]
The
employees were well aware of the above process. Even though both the
employees, when they testified, indicated that they were
not aware of
the notices offering the alternative positions, this proposition was
never put to Lamprecht under cross examination,
despite Lamprecht
stating that all the security guards on the Silver Lakes contract
were given these notices.
[27]
Jordaan in her testimony also confirmed that all the security guards
at Silver Lakes were offered all these positions, and added
that she
was personally present every week at Silver Lakes, during this time,
to offer positions to affected security guards. In
answer to the
proposition put to the employees under cross examination that AMCU
had in fact agreed to the process of alternatives
being circulated by
memorandum, the employees suggested that AMCU was on the side of the
respondent, which is clearly not a credible
suggestion. I must also
mention that in a supporting affidavit filed by Sebone as attached to
the statement of case, he contended
that the first he heard of any
retrenchment was on 3 September 2018 when he was told that 6
September 2018 was his last working
day, which version, considering
the common cause facts, was clearly false. I have little hesitation
in accepting that the employees
were properly made aware of all the
vacancies that they could apply for, and all they needed to do was to
apply for any of these
positions.
[43]
Significantly,
and despite their protestations of being unaware of available
vacancies up their actual retrenchment, Rachoene actually
applied for
one of the positions that the security guards were notified of in the
22 August 2018 memorandum. This was the Out of
Bounds positions in
Pretoria East. He was considered for the position, but due to
customer requirements, the available positions
were reduced to the
extent that there was no availability where it came to accommodating
Rachoene. The fact that Rachoene was not
placed at Out of Bounds but
two other employees were, was not the subject matter of challenge,
and the fairness thereof was never
explored by any of the parties.
[44]
In
the end, the evidence revealed that the employees had elected not to
apply for any of the vacancies, save for the one vacancy
that
Rachoene applied for as set out above. There were a number of reasons
offered by them as to why they decided to do this. One
reason for
this was that they were of the view that they should be transferred,
which issue has been dealt with above and has no
substance. Another
reason was that they adopted the view that if they applied for such a
position and were transferred, they would
have to conclude new
contracts of employment and would lose their entire length of
service. This proposition advanced by the employees
cannot have any
merit. There was no evidence by the respondent that in accepting any
alternative, employees would lose their length
of service. No such
proposition was explored with Lamprecht under cross examination. And
in any event, the BCEA makes such a proposition
impossible.
[28]
A final reason applies only to Sebone, in that he was unwilling to
consider any position that was not a grade A position, as it
would
entail a reduction in pay. He however could have remained employed if
he applied for and accepted a grade C position.
[45]
I
am convinced that if the employees applied for, at least, several of
the vacancies made available by the respondent, they would
not have
been retrenched. Lamprecht testified that most of the Silver Lakes
security guards had applied for the available positions
and were
placed, especially on the MTN contracts. Rachoene under cross
examination conceded that all the other applicants that
were
initially part of the referral had accepted positions at the
respondent and returned to work, hence they abandoned the dispute.
In
my view, none of the reasons provided by the employees as to why they
did not apply for any of these positions, are justifiable
and proper.
It was entirely in their own hands to have avoided their
retrenchment, however they spurned the opportunity. As such,
they
exposed themselves to retrenchment. The conduct of the employees in
this case is comparable to the following
dictum
in
Viljoen
v Johannesburg Stock Exchange Ltd
[29]
:
‘
I
add that I have very little hesitation in accepting that if the
applicant applied for the position of marketing manager, she would
have been placed in it. This is evident from the fact that the
undisputed evidence was that the applicant was considered by the
respondent to be overall competent to fill the marketing manager
position and certainly qualified for it. If the interview process
and
accompanying psychometric test highlighted any deficiencies in the
applicant’s make up for the position, then she would
be trained
to skill and equip her. The respondent made this clear to her in the
consultation.
In
the end, the applicant should have applied for the new positions of
marketing manager or brand manager, or even both in an order
of
preference. At the very least, she should have taken up the position
of brand manager in which she was ultimately placed as
a basis of B
compromise by the respondent. Her failure to do so must be fatal to
her case of substantive unfairness. She left the
respondent with no
choice but to retrench her, despite being in a risk-free position to
have avoided her own retrenchment.’
[46]
Because
the employees deliberately decided not to apply for the vacancies,
the respondent was in my view entitled to adopt the view
that the
employees effectively refused to accept offers of alternative
employment. And once that is so, they only have themselves
to blame
for finding themselves unemployed. As was said in
Freshmark
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
[30]
:
‘…
.
an employee who unreasonably refuses an offer of alternative
employment is not without fault. He has himself to blame if he
subsequently
finds himself without employment and, therefore, does
not deserve to be treated on the same basis as the employee who finds
himself
without employment due to no fault on his part ….
Where the employer offers to continue to employ the employee -
whether
in the same position but on different terms or on the same
terms but in a different position or in the same position and on the
same terms but in a different place, that is still alternative
employment. It is an offer of an alternative contract of employment.’
[47]
In
Louw
supra
,
the Court considered a situation where an employee deliberately
decided not to apply for a position, and where the evidence indicated
that if the employee had applied for the position, he would have been
appointed in it. The Labour Court (Court
a
quo
)
had decided that it was not appropriate to require the employee to
apply for the position, and he should have been simply placed
in that
position. The comparisons to the contentions of the employees
in
casu
is apparent. The Labour Appeal Court came to the following
conclusions:
[31]
‘…
To
move to the impact of this issue on the substantive fairness
contention, the so-called unfair selection criteria issue could
have
had no bearing at all on the failure to be appointed to the
Aliwal North area manager post. Louw never applied for that
post, despite an invitation to do so. The premise of the judgment a
quo is that he should have been given it without competing.
That
finding is without foundation on the facts or on the law. If Louw
applied for the George area manager post, he had no good
reason not
to apply for the Aliwal North post if he wanted the post. The
evidence discloses that he declined the prospect
of taking up the
Aliwal North post by failing to apply for it. Moreover, as already
addressed, a competitive process to seek to
avoid retrenchment is not
unfair.’
[48]
Also,
and considering the motivation put forward by the employees that they
decided not to apply for the positions because those
positions would
be less attractive to them, the following
dictum
in
Forecourt
Express (Pty) Ltd v SA Transport and Allied Workers Union and
Another
[32]
is
equally apposite, where the Court said the following, in
circumstances where it was argued that the alternative positions at
a
third party were less attractive to the employees concerned in that
case:
‘…
In
my view the second and further respondents' loss of income arose out
of their refusal of the offer of employment by the subcontractor
and
labour broker and not from their dismissal. It seems to me that the
second and further respondents are, in this regard, the
authors of
their own misfortune.’
[49]
Another
apt example is found in the judgment of
Mineworkers
Union/Solidarity on behalf of MacGregor v SA National Parks
[33]
where
the Court held as follows in finding the retrenchment of the employee
to be fair:
‘
If
the applicant had followed the instructions of Mr Mogome, he would
have just continued in the employ of the respondent, but in
the
position of manager: environmental management services. His
intransigent stance in refusing to change direction caused the
respondent to advertise that position internally and to treat all the
applicants the same. The applicant was nonetheless encouraged
to
apply, even belatedly, as the respondent believed he was the best
person for the position. However, after the long consultation
process, which included meetings and correspondence, the respondent
was entitled to decide not to accept an 'under duress' application
for the position. The applicant was interviewed though. It was clear
that he was not interested in the position. If he was, he
would have
withdrawn the 'under duress' reservation. …’
[50]
When
giving his testimony, Rachoene suggested that the respondent simply
took its ‘
favourites
’
to other sites. He also suggested that he was retrenched because the
respondent owed him a lot of money as he had shares.
None of this was
put to Lamprecht or Jordaan to respond to, under cross examination.
There was no indication of who these supposed
‘
favourites
’
were and where they were placed. Rachoene simply made a bald and
unsubstantiated statement in this regard. Sebone, in his
testimony,
also repeated the allegations relating to the ‘
favourites
’
point and him being too expensive to the respondent, but added that
they (the two employees) were selected for retrenchment
out of 64
security guards because they stood up for themselves. Again, such
versions by Sebone were never put to Lamprecht or Jordaan
under cross
examination. Also, and considering their own version that they were
never part of any consultations and were simply
presented with a
letter of retrenchment, it is difficult to understand what exactly
they did to stand up for themselves that may
have convinced the
respondent to retrench them. I am convinced that these contentions
were only afterthoughts the employees came
up with when giving
evidence, and I have little hesitation in rejecting these versions on
the basis of a lack of credibility.
[51]
For
all the reasons as set out above, I am satisfied that the dismissal
of the employees by the respondent was based upon legitimate
and
valid operational requirements, and that there was a fair and proper
reason to retrench them. I am also satisfied that there
were viable
alternative posts made available to the employees, and they elected
not to avail themselves of this opportunity. Because
of the fact that
they could have avoided their retrenchment, it has to follow that the
dismissal of the employees by the respondent
is thus substantively
fair.
Conclusion
[52]
Therefore,
the employees’ dismissal by the respondent for operational
requirements must be held to be substantively fair.
As to procedural
fairness, this is not competently before this Court to decide, and
cannot be considered. The employees’
unfair dismissal claim
thus falls to be dismissed.
Costs
[53]
As
to costs, the employees were unrepresented. I accept that in terms of
section 162(1) of the LRA I have a wide discretion in this
regard. I
must say that I have a measure of understanding of the employees’
unhappiness for having lost their jobs, however
it must also be
considered that they only have themselves to blame for having been
left unemployed. It at least appeared from the
testimony of the
employees that they have found alternative employment. I do not
believe the employees were malicious or
mala
fide
in
pursuing this matter. The reality is that they lost their jobs due to
circumstances beyond their control in an environment where
jobs are
already scarce. It is my view that a costs order against the
employees, all considered, would not be appropriate. I consider
it
fair and justified that no order as to costs be made.
[54]
For
all of the reasons as set out above, I make the following order:
1.
The
applicants’ dismissal by the respondent is substantively fair.
2.
The
applicants’ claim is consequently dismissed.
3.
There
is no order as to costs.
S
Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants:
Both in person
For
the Respondent:
Ms L Foot of Crafford Attorneys
[1]
Act 66 of 1995 (as amended).
[2]
Compare
Corns
v Adelkloof Drankwinkel CC t/a Cellars Drankwinkel
(2002)
23 ILJ 2047 (LC) at para 14.
[3]
(2001)
22 ILJ 2019 (LC) at para 11.
[4]
Act 75 of 1997 (as amended).
[5]
Leave
and notice pay is p
ayable
under sections 37(1) and 40(a) of the BCEA, respectively. The
pro-rata bonus is payable under clause 6 of sectoral determination
6
for the Private Security Sector.
[6]
Compare
Hodges
v Urban Task Force Investments CC
2014
JDR 0164 (LC) at paras 37 – 39.
[7]
Section 189A(1)(a)(i). There is a sliding scale in in section
189A(1)(a)(ii) – (v) as to the number of employees that the
employer must contemplate retrenching, where the employer employs
more than 500 employees.
[8]
Compare
Lethlake
and Another v Metcash Trading Ltd
(2007)
28 ILJ 2006 (LC) at para 11;
National
Union of Metalworkers of SA and Others v Greenfields Labour Hire CC
and Another
(2004) 25 ILJ 558 (LC)
at
para 3.
[9]
This would include adding employees already retrenched in a
12(twelve) month period prior to the current restructuring as well
–
see section 189A(1)(b).
[10]
Compare
Banking
Insurance Finance and Assurance Workers Union on Behalf of Miya and
Another v Scorpion Legal Protection (Pty) Ltd
(2024) 45 ILJ 298 (LC) at paras 8 – 10.
[11]
See sections 189A(7)(b)(ii) and 189A(8)(b)(ii)(bb).
[12]
See sections 189A(7)(b)(i) and 189A(8)(b)(ii)(aa).
[13]
The
section reads: ‘
If
an employer does not comply with a fair procedure, a consulting
party may approach the Labour Court by way of an application
for an
order- (a) compelling the employer to comply with a fair
procedure; (b)interdicting or restraining the employer from
dismissing an employee prior to complying with a fair procedure;
(c) directing the employer to reinstate an employee until
it
has complied with a fair procedure; (d) make an award of
compensation, if an order in terms of paragraphs (a) to (c)
is not
appropriate
’
.
[14]
See
Forbes
and Others v SA Municipal Workers Union
(2014) 35 ILJ 687 (LC) at para 20;
SA
Society of Bank Officials
v
Standard Bank of SA
(2011)
32 ILJ 1236 (LC)
para
29
;
Insurance
and Banking Staff Association and Another v Old Mutual Services and
Technology Administration and Another
(2006) 27 ILJ 1026 (LC)
at para 9;
National
Union of Metalworkers of SA v General Motors of SA (Pty) Ltd
(2004)
25 ILJ 2358 (LC) at paras 34 and 35.
[15]
Ordinarily, only compensation can be awarded for a procedurally
unfair dismissal – see section 193(2)(d).
[16]
(2016)
37 ILJ 564 (CC) at para 158.
[17]
(2018)
39 ILJ 531 (LAC).
[18]
Id at paras 19 – 20. See also
Woolworths
(Pty) Ltd v SA Commercial Catering and Allied Workers Union and
Others
(2018)
39 ILJ 222 (LAC) at para 13. I am aware that the Constitutional
Court in
South
African Commercial, Catering and Allied Workers Union and Others v
Woolworths (Pty) Limited
(2019)
40 ILJ 87 (CC) overturned the judgment of the Labour Appeal Court,
but it did so on the issue of substantive fairness,
and did not
overturn the finding of the Labour Appeal Court that the Court
cannot enquire into procedural unfairness in a dispute
referred to
the Court in terms of section 191(5)(b).
[19]
See
National
Union of Metalworkers of SA and Others v SA Five Engineering and
Others
(2004)
25 ILJ 2358 (LC);
Perumal
and Another v Tiger Brands
(2007)
28
ILJ
2302
(LC);
Thomas
v Fidelity Corporate Services (Pty) Ltd
(2007)
28
ILJ
424 (LC);
Banks
and Another v Coca-Cola SA - A Division of Coca-Cola Africa (Pty)
Ltd
(2007)
28
ILJ
2748 (LC);
National
Union of Mineworkers v Anglo American Platinum Ltd and Others
(2014)
35
ILJ
1024 (LC.
[20]
(2024)
45 ILJ 298 (LC) at paras 26 – 27.
[21]
(2017)
38 ILJ 463 (LC) at para 18.
[22]
(2006)
27 ILJ 292 (LAC) at para 55.
[23]
See
Super
Group Supply Chain Partners v Dlamini and Another
(2013)
34 ILJ 108 (LAC) at para 28;
Association
of Mineworkers and Construction Union and Others v Tanker Services
(Pty) Ltd
(2018)
39 ILJ 2265 (LC) at para 26;
United
People's Union of SA on behalf of Khumalo v Maxiprest Tyres (Pty)
Ltd
(2009) 30 ILJ 1379 (LC) at para 46.
[24]
See
Plaaslike
Oorgangsraad van Bronkhorstspruit v Senekal
(2001)
22 ILJ 602 (SCA) at para 27;
Broll
Property Group (Pty) Ltd v Du Pont and Others
(2006)
27 ILJ 269 (LAC) at paras 24 and 26;
Viljoen
v Johannesburg Stock Exchange Ltd
(2017) 38 ILJ 671 (LC) at para 67.
[25]
(2018)
39 ILJ 189 (LAC) at para 22.
[26]
Id
at para
19.
[27]
This
failure results in the acceptance of the testimony of Lambrecht -
see
ABSA
Brokers (Pty) Ltd v Moshoana NO and Others
(2005)
26
ILJ
1652
(LAC) at para 39;
Trio
Glass t/a The Glass Group v Molapo NO and Others
(2013)
34
ILJ
2662 (LC) at para 41;
National
Union of Metalworkers of SA and Others v SA Truck Bodies (Pty) Ltd
(2008) 29 ILJ 1944 (LC) at para 10.
[28]
Section
84(1) of the BCEA provides: ‘
For
the purposes of determining the length of an employee's employment
with an employer for any provision of this Act, previous
employment
with the same employer must be taken into account if the break
between the periods of employment is less than one
year.
’.
[29]
(2017)
38 ILJ 671 (LC) at paras 83 – 84. See also
Mineworkers
Union/Solidarity on behalf of MacGregor v SA National Parks
(2006) 27 ILJ 818 (LC) at para 39.
[30]
(2003)
24
ILJ
373
(LAC)
at para 24. Also compare
Latex
(
supra
)
at para 69;
Entertainment
Catering Commercial and Allied Workers Union of SA and Others v
Shoprite Checkers t/a OK Krugersdorp
(2000)
21 ILJ 1347 (LC) at para 28.
[31]
Id at para 26.
[32]
(2006)
27 ILJ 2537 (LAC) at para 41.
[33]
(2006)
27 ILJ 818 (LC) at para 39. See also
Pratten
v Afrizun KZN (Pty) Ltd
(2020)
41 ILJ 2899 (LC) at para 36;
Telkom
SA Soc Limited v Van Staden
2020
JDR 2579 (LAC) at para 44.