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[2024] ZALCJHB 341
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Ntsokolo v Eskom SOC Limited (JS413/2019) [2024] ZALCJHB 341; (2024) 45 ILJ 2616 (LC) (23 April 2024)
FLYNOTES:
LABOUR – Dismissal –
Operational
requirements
–
Position
no longer existing in new structure – Employee had necessary
skills and expertise for positions he was interviewed
for –
Panel veered off objective process envisaged within context of
restructuring due to operational requirements
– Competitive
recruitment and placement in context of section 189 process is not
selection criterion but method to
avoid retrenchment –
Dismissal was substantively and procedurally unfair –
Labour
Relations Act 66 of 1995
,
s 189.
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No:
JS 413/2019
In the matter between:
MATTHEW
MONGEZI NTSOKOLO
Applicant
and
ESKOM
SOC LIMITED
Respondent
Heard:
25 January 2024
Delivered:
23 April 2024
Summary:
Section 189
of LRA – retrenchment – competitive
recruitment and placement within the context of a
section 189
process
is not a selection criterion but a method to avoid retrenchment –
reasonableness of the process is subject to scrutiny
– the
displaced employee is not automatically retrenched if not appointed
following an interview – employer would still
be enjoined to
consult with a displaced employee sufficiently and reasonably as
envisaged in
section 189
of the LRA.
JUDGMENT
NKUTHA-NKONTWANA, J
Introduction
[1]
The applicant (Mr
Ntsokolo), was dismissed from
the
employ
of the respondent (Eskom) due to operational requirements following a
consultation process in terms of
section 189
of the
Labour Relations
Act
[1]
(LRA). The
section 189
process was pursuant to Eskom’s restructuring process which
impacted its executive structure and, pertinently, the F-Band
level.
[2]
In this litigation, Mr Ntsokolo is challenging the
substantive
and procedural
fairness of his dismissal
and
seeks an order in the following terms:
2.1
Compensation equivalent to twenty-four months’
remuneration;
2.1
Policy on voluntary severance packages (VSP)
applies to him;
2.1
Payment of his full benefits as per the Eskom
Provident Fund; and
2.1
Compensation for the inconvenience and trauma he
suffered due to his alleged unfair dismissal.
Background
[3]
Mr Ntsokolo commenced his employment with Eskom on 1 February 1991.
During his employment, he held various positions including
the
position of Group Executive: Transmission, Group Executive: Human
Resources; and Group Executive: Generation. At the time of
his
dismissal, 31 December 2018, he held the position of Group Executive:
Distribution, the F-Band level position.
[4]
It is common cause that Mr Ntsokolo and Ms Elsie Pule, the Group
Executive: Human Resources and one of the two Eskom witnesses,
were
part of the F-Band level and members of the Eskom
Executive
Committee (
EXCO), reporting to the Group Chief Executive
Officer (GCEO). At the time the GCEO was Mr Phakamani Hadebe (Mr
Hadebe) who has since
left the employ of Eskom.
[5]
When the restructuring process commenced, Eskom had 21 F-Band roles,
16 of whom reported to the GCEO. It is common cause
that, as early as
2014, the EXCO began the discussions about turning the organisation
around, including reducing the headcount
and associated employee
benefit costs which were a big part of an unsustainable cost
structure. In the same period, EXCO undertook
a Business Productivity
Programme and offered voluntary severance packages as a measure to
reduce the headcount.
[6]
In 2016, EXCO embarked on a Design to Cost project to identify
opportunities to reduce employee benefits. Mr Ntsokolo was
part of
the EXCO discussions and decisions. In 2018, Eskom’s debt
situation was spiralling and Mr Hadebe was instructed by
the
Eskom
Board of Directors (Board)
to develop a financial viability
plan. The EXCO undertook a financial viability study and all the
Executives were tasked to come
up with ideas. The committees
collected information in their functional areas and fed it into the
project for consideration by
the EXCO. The respondent’s
financial viability was reflected as a matter of concern with
substantial employee costs which
required to be reduced as part of
the levers to remedy the unsustainable financial condition of Eskom.
[7]
Boston Consulting Group (BCG) was appointed to assist and advise on
restructuring and Lazard Consulting to advise on financial
matters in
consultation with the EXCO. The study that was conducted by BCG found
that the span of control was wide at the top and
recommended a
restructuring of the organisation, commencing with the top leadership
because such an approach was a “no regret”
option as it
would determine how the lower levels are configured.
[8]
In June 2018, the respondent appointed a Chief Operating Officer
(COO), a position which did not exist in the approved structure
that
existed at the time. The COO had, as direct reports, the operational
functions that reported to the GCEO. In July 2018, the
EXCO made the
decision to reduce employee costs by 50% as part of the Financial
Viability Plan. In August 2018, the Board approved
the advice to
restructure the F-Band and the decision to reduce it by 50%.
[9]
On 26
October 2018, the Board resolved to reduce employee costs, across the
staffing
levels
,
by 50% and to restructure Eskom so that it is fit for purpose. That
was followed by
Mr
Hadebe’s meeting with the F-Band employees to inform them of
the intention to embark on a
section 189
process. The F-Band
comprised 21 positions, including the GCEO, Group Executives, Senior
General Managers and support functions.
Mr Ntsokolo was one of the
attendees at this meeting as well as an external consultant, Mr
Charles Nupen of StratAlign.
[2]
[10]
The first consultation was held on 7 November 2018. Mr Hadebe
convened a meeting to introduce the Board-approved structure
of the
section 189
consultation process for the F-Band employees. The
section 189(3)
notices were issued. It is not in dispute that this
meeting formally commenced the consultation process on restructuring
of the
F-Band level.
[11]
The F-Band employees were invited to make any submissions relating to
the matters addressed in the letter by 12 November
2018 and advised
that the process would be completed on 10 December 2018. The date was
extended to 21 December 2018 as a result
of the extensions of time
granted to employees to make submissions.
[12]
The
second consultation meeting was held on 14 November 2018. It is not
in dispute that there was an agreement on the rationale
for the
restructuring. Eskom then introduced the proposed new structure and
invited the F-Band employees to make representations
on the
structure. The proposed new structure merged the positions of Group
Executive: Distribution and Group Executive: Customer
Service into
one position of Group Executive: Distribution. As a result, the Group
Executive: Distribution, occupied by Mr Ntsokolo,
and the Group
Executive: Customer Service positions were to be abolished.
[13]
The F-Band employees were requested to make representations on the
proposed new structure by 19 November 2018. Mr Ntsokolo,
made his
representations which were addressed to Mr Hadebe, raising several
issues, including requesting job profiles. Mr. Hadebe
replied to the
applicant on 23 November 2018.
[14]
The third consultation meeting was held on 27 November 2018. It was
established during that meeting that there was consensus
on the
structure which was thereafter proposed to the Board for approval.
The new job profiles were only communicated after the
meeting and
employees had to respond in writing. Mr Ntsokolo submitted his input
on the profiles on 3 December 2018.
[15]
The fourth meeting was held on 8 December 2018. It would seem that
nothing much was discussed as the new structure was still
pending
approval by the Board, which was expected on 11 December 2018. In
fact, on 13 December 2018, Ms Pule advised the F-Band
employees that,
subject to the Board resolution, the next action would be as follows:
15.1 On 13 - 14
December 2018, the individual letters to all F-Band employees would
be communicated;
15.2 The jobs would
be advertised where necessary;
15.3 Interviews
would be scheduled for 18 - 19 December 2018; and
15.4 The final
outcome would be communicated on 21 December 2018.
[16]
It is common cause that Mr Ntsokolo had a separate discussion with Mr
Hadebe and made his representations on the issues
that had been
discussed during the consultation meetings. Mr Hadebe accordingly
responded to all the issues that had been raised
and proposed by Mr
Ntsokolo; most of which pertained to the rationale for the
restructuring, the proposed new structure and the
profiles for the
new positions.
[17]
On 14 December 2018, Mr Ntsokolo received a letter that informed him
that the new structure had been approved and, as
a result, he was
affected by the restructuring. His former position no longer existed
as it had been merged with that of Group
Executive: Customer Service,
resulting in a new position of Group Executive: Distribution. He was
given options in terms of the
process thereon, which included a VSP
or applying for any vacant position per the list that was attached to
the letter. Eskom promised
to consult with Mr Ntsokolo on selection
criteria and proposed severance pay; and that he would be informed of
a date of such consultation
“in the interim”.
[18]
On 14 December 2018, Mr Ntsokolo applied for the positions of Group
Executive Distribution, Group Executive Generation,
Group Executive
Transmission, and Group Executive Group Capital. His application
comprised a cover letter and his curriculum vitae
(CV). Mr Ntsokolo
testified that there were no internal advertisements for the
positions that he had applied for, contrary to Ms
Pule’s
evidence. He was adamant that he only became aware of the recruitment
profiles of the positions he had applied for
after he had been
interviewed on Tuesday, 18 December 2018, which was the next workday
after Friday 14 December 2018. That was
so because Sunday, 16
December 2018, was a public holiday and, accordingly, Monday was not
a workday.
[19]
It is common cause that Mr Ntsokolo’s interview was held on 18
December 2018 and at a venue away from Eskom’s
premises. Ms
Pule testified that there was a consultation meeting on 18 December
2018 and that Ms Ntsokolo attended telephonically
wherein selection
criteria and severance pay were discussed. This evidence was refuted
by Mr Ntsokolo who challenged the practicality
of it as he was
attending an interview on the day in question.
[20]
On 21 December 2018, the applicant was informed that his application
for the vacant positions was unsuccessful and his
last workday would
be 31 December 2018, giving him 10 days to clear his desk.
Issues
for determination
[21]
The crux of Mr Ntsokolo’s challenge is the conduct of Eskom
from 18 to 21 December 2018. As such, the issues for
determination
are mainly that:
23.1 Whether the
decision not to appoint Mr Ntsokolo in one of the positions he had
applied for was rational;
23.2 Whether Eskom
did consider alternatives to retrenchment;
23.3 Whether Mr
Ntsokolo was consulted on the selection criteria and severance pay as
promised in the letter dated 14 December
2018; and
23.4 Whether the
relief is sustainable.
[22]
Mr Ntsokolo took no issue with the rationale and the new F-Band
structure. Even the consultation process prior to 18
December 2018 is
not seriously challenged.
Was
the decision not to appoint Mr Ntsokolo in order to avoid his
retrenchment rational?
[23]
As mentioned above, Mr
Ntsokolo accepts that, once his position was abolished, he became
displaced. Consequently, he had to compete
for placement in the new
structure in order to avoid his retrenchment.
[3]
It is also not in dispute that the new positions and, in particular,
the new position of Group Executive: Distribution, were significantly
different in content as compared to Mr Ntsokolo’s extinct
position so as to justify assessment for his suitability for
appointment.
[24]
Mr Brews, Eskom’s main witness from StratAlign, was the main
external facilitator throughout the
section 189
process. He was also
part of the panel that interviewed Mr Ntsokolo. Other panel members
were Messrs Hadebe, GCEO; Jan Oberholzer
(Mr Oberholzer), the Chief
Operating Officer (COO); and Mmes. Busisiwe Mavuso and Nelisiwe
Magubane, Non-Executive Board members.
[25]
Mr Brews is the only panel member who recommended Mr Ntsokolo for
appointment, though he expressed reservations about
his people
management, leadership and failure to take accountability for the
state Eskom found itself in. Mr. Oberholzer wrote
in his score sheet
“
[n]ot Recommended after 15 years on Exco
” as a
reason for not recommending Mr Ntsokolo for appointment. The rest of
the panel members did not record their recommendations
in their
scoring sheets. Also, there was no overall consensus score recorded
in the respective panel members’ score sheets.
[26] Mr
Brews testified that the panel did have a debate on individual panel
members’ scores and reached consensus on
the ultimate decision
not to recommend Mr Ntsokolo for appointment. He then referred to the
document titled “Panel Interview
Questionnaire Responses
Summary” (interview questionnaire summary). The essence of his
evidence in chief was that the interview
questionnaire summary was
prepared as part of the court process, three years after Mr
Ntsokolo’s interview. Apparently, Ms
Dorcas Moloi, an Eskom
employee, prepared a draft by transcribing questions in the
questionnaires. Thereafter other Eskom employees
contacted each of
the panel members to confirm whether the transcription was accurate.
[27] Mr
Brews was then asked by the panel members to prepare a first draft of
the consensus conclusions based on the conversations
that they had at
the end of the interview. He discussed his draft with Mr. Oberholzer,
who agreed that the draft recorded the consensus
by the panel at the
time. Mr. Hadebe did not participate in the reconstruction process.
[28]
Quizzed on the interview questionnaire summary, Mr Brews conceded
that it was riddled with errors; that he failed to
mention in his
evidence in chief that the alleged consensus by the interview panel
was reconstructed three years after the interview;
and that not all
panel members who interviewed Mr Ntsokolo were involved in the
reconstruction process.
[29] Eskom
took no issue with Mr Ntsokolo’s qualifications, skills and
impressive organisational experience. In fact,
both Mr Brews and Ms
Pule conceded that he had the necessary skills and expertise suitable
for the positions he was interviewed
for.
[30]
Yet, Mr Ntsokolo was not recommended for appointment. Notably, the
conclusions allegedly reached by the interviewing
panel as recorded
in the interview questionnaire summary are in essence the same as the
views that were expressed by both Messrs
Brews and Oberholzer in
their individual score sheets.
[31]
Mr Brews could not clearly articulate what he meant by his assertion
that Mr Ntsokolo failed to take accountability for
the situation in
which Eskom found itself despite having been in leadership for 15
years. Tellingly, he conceded during his cross-examination
that at no
point during Mr Ntsokolo’s interview was it suggested that he,
Mr Ntsokolo, was supposed to take accountability
for the past. Yet,
he was castigated for his failure to do so and disqualified for
appointment.
[32]
As well, Mr Brews conceded that the panel could not have correctly
concluded that Mr Ntsokolo was lacking in his leadership
skills
because they had no information to contradict his leadership track
record as was contained in his CV. Conversely, Ms Pule
testified that
she had no reason to dispute Mr Ntsokolo’s leadership acumen.
[33]
Conspicuously absent is evidence by Eskom to show in what manner Mr
Ntsokolo’
s 15
years of experience as a member of EXCO
disqualified him for appointment. Instead, Mr Ntsokolo testified that
Eskom acknowledged
his skill and expertise even a few days before his
interview when Mr Oberholzer appointed him to serve as a member of a
team that
had to implement the 9 Point-Plan turnarounds strategy (9
Point-Plan); a critical operational plan that was under the
supervision
of Mr Oberholzer. Ms Pule conceded that the members who
were appointed to serve on the panel to implement the 9 Point-Plan
had
a proven track record of delivery.
[34]
There is no merit in the contention by Eskom’s counsel that an
adverse inference should be drawn against Mr Ntsokolo
for his failure
to lead evidence to corroborate his assertion that he was informed by
Oberholzer that he would lead the 9 Point-Plan
and that his
appointment had been agreed to. The point Mr Ntsokolo was basically
making is that it did lie in the mouth of Mr Oberholzer
to contest
his capabilities because he had already appointed him to serve, at
least, as a member of the team to implement the 9
Point-Plan
turnaround strategy. It, therefore, follows logically that it is
Eskom that was supposed to lead evidence to rebut these
assertions
and not the converse.
[35]
The recruitment interview questionnaire outlined the context and
methodology that were to guide the interviews. Mr Brews
further
conceded during cross-examination that the methodology proposed was
aimed at predicting how the candidates would behave
in the role for
which they applied on the basis of past behaviour and learnings. Mr
Ntsokolo’s CV chronicled in detail his
past engagements,
achievements and expertise, and crafted a vision for Eskom in the
event he was appointed.
[36]
In addintion, Eskom did not dispute the fact that Ms Ntsokolo was the
only F-Band employee who applied for three of the four positions
he
was interviewed for. He had a track record in all of the positions he
was interviewed for as he had, at some stage, led those
divisions at
an executive level.
[37]
It would seem to me that the approach that was adopted by the panel
and the views they expressed in the end were contrary to the
context
provided in the recruitment Interview questionnaire which enjoined
them to be cognisance of the fact that interviews were
taking place
as part of a
section 189
consultation process, the candidates were
F-Band employees with reasonable knowledge of the company and they
had participated in
high-level discussions about the direction and
strategy of Eskom.
[38]
It is apparent that the
interviewing panel veered off the objective process envisaged within
the context of restructuring due to
operational requirements. They
became oblivious to the requirement that, in a
section 189
process,
the employer is expected to take such steps as may be reasonable to
avoid or minimise retrenchments, which may include
redeployment
within the new structure or elsewhere in the organisation.
[4]
[39]
Thus, as stated
in
BMD Knitting Mills (Pty) Ltd v SA Clothing and Textile Workers
Union
[5]
,
the court is entitled to scrutinise the reason given by the employer
in order to establish whether there was a rational basis
upon which
the decision to retrench is predicated:
‘
Viewed
accordingly, the test becomes less deferential and the court is
entitled to examine the content of the reasons given by the
employer,
albeit that the enquiry is not directed to whether the reason offered
is the one which would have been chosen by the
court. Fairness, not
correctness is the mandated test.’
[6]
[40]
It is true, as contended
for Eskom, that the decision to require the applicant to apply for a
vacant position in the new structure
is not unfair on the basis of
the Labour Appeal Court ‘s (LAC) dictum in
SA
Breweries (Pty) Ltd v Louw
[7]
(
SAB
).
In
SAB
,
the LAC pointed out that where
the
employer elects to appoint dislocated employees after a restructuring
process, the assessment criteria used in doing so do not
amount to
‘selection criteria’ as contemplated in
section 189
of
the LRA. Nonetheless,
SAB
is
distinguishable as the employee in that matter was found not suitable
as compared to the candidate that was appointed. Subsequently,
he
refused to apply for another vacant post, notwithstanding being
invited to do so.
[8]
[41]
Still,
even
though
the competitive process to seek to avoid retrenchment is not unfair
,
“…
this
does not remove the obligation on an employer to ensure that any
resultant retrenchment meets the requirements of substantive
fairness, with fair and objective selection criteria used to select
those employees to be retrenched and alternatives to retrenchment
properly canvassed and carefully considered
”
.
[9]
[42]
In the present instance, the common cause and undisputed evidence
show that there was no rational basis for the decision not to
appoint
Mr Ntsokolo in one of the vacant positions he had applied for in
order to avoid his retrenchment. Tellingly, he was not
only qualified
for appointment, he was the only candidate in three of those
positions. While it is not in dispute that the was
a justifiable
rationale for the restructuring of the F-Band, Eskom failed to take
reasonable steps to avoid Mr Ntsokolo’s
dismissal. Thus, the
dismissal of Mr Ntsokolo was irrational.
Failure
to consult on alternatives, selection criteria, severance pay and
timing
[43]
There is no evidence to justify the decision to terminate the
consultation process consequent to the Board’s decision to
not
appoint Mr Ntsokolo in one of the vacant positions. Since it is
accepted that a competitive recruitment and placement process
in the
context of
section 189
is not a selection criterion as envisaged in
section 189(7)
, failure to appoint a displaced employee does not
automatically result in a dismissal.
[44]
Mr Ntsokolo also assails the fairness of the process that was
undertaken by Eskom on various grounds, including failure to consult
him on the selection criteria and severance pay, the timing of the
retrenchment, reasonable time off in order to allow him the
opportunity to seek alternative employment as promised in the
section
189(3)
notice. As well, Eskom had undertaken to consult Mr Ntsokolo
on the selection criteria and severance pay in its communiqué
of 14 December 2018.
[45]
Ms Pule testified that there was a consultation meeting on 18
December 2018 that discussed selection criteria and severance pay.
I
find it difficult to accept this evidence for the following reasons:
Firstly, it only emerged during Ms Pule’s cross-examination;
secondly, it was not corroborated by Mr Brews’ evidence, who
was allegedly in attendance; and, thirdly, Eskom failed to produce
the minutes of the said meeting. In any event, it is highly
improbable as it was Mr Ntsokolo’s uncontested evidence that
he
was attending his interview on 18 December 2018. As such, he could
not have attended any consultation meeting because the interviews
were held at an external venue. Mr Pule’s evidence that Mr
Ntsokolo attended the consultation telephonically is nothing but
a
clutch at straws.
[46]
Furthermore, according to Mr Ntsokolo, the timing of his retrenchment
was never discussed with him; nor was he afforded an opportunity
to
seek alternative employment. He was served with a retrenchment letter
on 21 December 2018 and had to vacate his office within
10 days
thereafter. This evidence is undisputed.
[47]
Granted, Eskom did consult the F-Band employee on the rationale for
the restructuring and the structure from 7 November 2018 to
13
December 2018. The critical phase of the consultation process,
however, commenced on 14 December 2018, when Mr Ntsokolo was
informed
that he was personally affected by the restructuring and consequently
displaced.
[48]
Other than the interview on 18 December 2018, there was no
consultation thereafter on available alternatives to either avoid the
retrenchment, to minimise its effect or to postpone the timing as
envisaged in
section 189(2)
of the LRA. Instead, Eskom gave
artificial respiration to a long-resolved allegation of misconduct
against Mr Ntsokolo. According
to Mr Ntsokolo, its timing was meant
to discredit him and jeopardise his prospects of appointment to the
new Eskom structure. This
assertion was vehemently opposed by Eskom.
I do not have to say much on this issue because it was rendered moot
by the retrenchment
of Mr Ntsokolo.
[49]
Viewed holistically,
notwithstanding the existence of a genuine business rationale, the
decision to retrench Mr Ntsokolo without
a reasonable attempt to
avoid same and meaningly consult with a view to reach consensus on
selection criteria, severance pay and
the timing of retrenchment
rendered the retrenchment both procedurally and substantively
unfair.
[10]
Conclusion
[50]
In all the circumstances, I am satisfied that Mr Ntsokolo’s
retrenchment was substantively and procedurally unfair. Eskom
failed
to prove that it had properly considered alternatives to retrenchment
and adequately embarked on a joint consensus-seeking
process.
Relief
[51]
When it comes to relief, it is apparent from Mr Ntsokolo’s
written submissions that he had abandoned the prayers in relation
to
the VSP payment per the policy, early retirement benefits and
compensation for the inconvenience and trauma, prudently so. There
was no evidence led to support the grant of these remedies.
[52]
Mr Ntsokolo persistently contended for a relief of compensation
instead of reinstatement. This entreaty is consistent with the
pleadings and his evidence that, while he was adamant that he ought
to have been appointed as he met all the requirements of the
positions he has applied for, he was willing to consider other
alternatives to retrenchment which included an early retirement.
[53]
Curiously, during the
hearing of oral submission, it was contended by Mr Ntsokolo’s
counsel that he now seeks to be reinstated
should I find that his
dismissal was substantively unfair. Obviously, this contention is not
supported by Mr Ntsokolo’s pleaded
case and the pre-trial
minutes which are binding; unless amended by agreement between the
parties or with leave of the court.
[11]
Worse still, even in his written submissions no mention is made of a
relief of a reinstatement.
[54]
Eskom opposed the turn of
events and correctly contented that it does not avail Mr Ntsokolo to
seek a remedy he never pleaded. Eskom
was only called to challenge a
relief of 24 months’ compensation and not reinstatement. As a
result, both parties did not
lead evidence on the reasonableness and
practicability of an order of reinstatement; especially, in the
circumstances where the
position Mr Ntsokolo held at the time of his
retrenchment is now extinct.
[12]
[55]
Thus, Mr Ntsokolo must accordingly stand and fall
by his pleaded claim. It is not for this
Court
to
construe or infer from the asserted facts in the statement of case
that they sustain another relief even though it is not pleaded.
Absent authority that empowers me to pronounce on an issue
that was not pleaded as proposed by Mr Ntsokolo’s counsel, this
submission is devoid of merit and must fail.
[56]
That takes me to the issue of compensation to be awarded. Mr Ntsokolo
seeks compensation equivalent to 24 months’ remuneration.
Yet,
there is no iota of evidence to support such a relief. Instead,
section 193(1)(c)
of the LRA provides that “…
[i]f the
Labour Court or an arbitrator appointed in terms of this Act finds
that a dismissal is unfair, the Court or the arbitrator
may…
order the employer to pay compensation to the employee’
.
While
section 194(1)
of the LRA provides:
‘
The
compensation awarded to an employee whose dismissal is found to be
unfair either because the employer did not prove that the
reason for
dismissal was a fair reason relating to
the employee’s conduct or capacity or
the
employer’s operational requirements or the employer did not
follow a fair procedure, or both, must be just and equitable
in all
the circumstances, but may not be more than the equivalent of 12
months’ remuneration calculated at the employee’s
rate of
remuneration on the date of dismissal
.’
[Own emphasis]
[57]
Section 194(1)
contains a
cap of 12 months' remuneration and nothing more. It was contended for
Eskom that even if the retrenchment is found to
be unfair, the
procedural mishaps were not serious enough to warrant a maximum
compensation of 12 months. Of course, this contention
may be true in
instances where unfairness is only procedural. As aptly put by the
LAC, per Davies JA, in
Total
SA (Pty) Ltd v Meyer and others
[13]
(
Total
):
‘
The first
respondent’s rights to be treated fairly, with care and concern
and to enjoy the benefits of an adequate consultation
process, as
provided for in the LRA, before being retrenched, were ignored by a
large and powerful employer, which unquestionably
had the resources
to ensure that its human relations management policy was congruent
with the clear objectives of the LRA. The
award of compensation
represents a monetary response to the clear breach of an employee’s
rights and cannot be equated with
the amount awarded in respect of
the patrimonial loss suffered by an employee, such as the first
respondent.’
[14]
[58]
On the contrary,
Total
is distinguishable from the facts
in
casu
as compensation in that case was solely for procedural
flaws. In the present instance, the dismissal of Mr Ntsokolo was also
substantively
unfair, as found hereinabove. As such, I have taken
into consideration the fact that Eskom diverged from the context and
methodology
it had set for itself in order to avoid the retrenchment
of the affected F-Band employees. Mr Ntsokolo was assessed and
disqualified
for appointment purely on subjective grounds that had
nothing to do with his skills and experience of 27 years. What is
more, Eskom
adamantly contended that the selection criterion it
adopted was the one of skills retention. Even so, it inexplicably
disposed
of one of its irrefutably impressive skills at its disposal,
in the person of Mr Ntsokolo, on an irrational basis.
[59]
Accordingly, in my view, this is a typical case where the award of a
maximum compensation of 12 months as a solatium would be fair
and
equitable in light of the factual matrix of this case, viewed
holistically.
Costs
[60]
It was contended for Mr Ntsokolo that costs should follow the result
given the conduct of Eskom leading to his retracement and
its
decision to oppose this litigation. On the other hand, Eskom opposed
the awarding of costs against it, contending that it was
dragged to
oppose this ligation as a result of Mr Ntsokolo’s claims in
respect of the 24 months’ compensation, early
retirement claim
and VSP. As alluded to hereinabove, these remedies were belatedly
abandoned by Mr Ntsokolo; save for the 24 months’
compensation.
Thus, I agree with Eskom that its opposition was not frivolous so as
to warrant that it be saddled with costs without,
at least,
apportionment. Thus, in view, it is fair and equitable that Eskom
pays 80% of Mr Ntsokolo’s costs.
[61]
In all the circumstances, I make the following order:
Order
1.
The dismissal of the applicant, Mr Matthew Mongezi Ntsokolo
,
was
substantively and procedurally unfair.
2.
The respondent, Eskom SOC Limited, shall pay the applicant
compensation equivalent to 12 months’ remuneration calculated
at his rate of remuneration on the date of dismissal.
3.
The respondent shall pay compensation as mentioned in paragraph 2
above to applicant within one month after delivery of this judgment.
4.
The respondent shall pay 80% of the applicant’s costs.
P Nkutha-Nkontwana
Judge of the Labour Court
of South Africa
Appearances:
Applicant:
Advocate
D Mpofu SC
Instructed
by:
Mabuza
Attorneys
Third
Respondent:
Advocate
S Baloyi SC
Instructed
by:
Bowman
Gilfillan Attorneys
[1]
Act
66 of 1995, as amended.
[2]
StratAlign
is
a
company that,
inter
alia
,
facilitates and assists companies with restructuring and was
appointed by the respondent to guide the consultation process and
assist the parties in the consultation process.
[3]
SA
Breweries (Pty) Ltd v Louw
[2017]
ZALAC 63
;
[2018] 1 BLLR 26
(LAC) at para 22.
[4]
See:
Manning
v Metro Nissan - A Division of Venture Motor Holdings Ltd and
another
(1998)
19 ILJ 1181 (LC) at para 29.
[5]
(2001) 22 ILJ 2264 (LAC);
[2001] 7 BLLR 705
(LAC) at para 19.
[6]
Id.
[7]
(2018)
39
ILJ
189
(LAC)
;
[2018] 1 BLLR 26 (LAC).
[8]
See:
Regenesys
Management (Pty) Ltd t/a Regenesys v Nortje and others
[2022] ZALAC 96
; (2022)
43 ILJ 2745 (LAC) at paras 21 - 22.
[9]
Id
at para 22.
[10]
See:
Kotze
v Rebel Discount Liquour Group (Pty) Ltd
(2000)
21 ILJ 129 (LAC) at para 37.
[11]
See:
Gcaba v Minister of Safety and Security
and
Others
[2009]
ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at para 75;
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
[2013]
ZACC 49
;
2014 (3) BCLR 333
(CC); (2014) 35 ILJ 613 (CC);
2014 (5) SA
579
(CC) at para 90. See
also
Molusi and Others v Voges N.O. and Others
2016
(3) SA 370
(CC);
2016 (7) BCLR 839
(CC) at para 28.
[12]
See
section 193(2)(c) of the LRA which provides that:
‘
The
Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless –
…
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee…’
[13]
(2021) 42 ILJ 1696 (LAC).
[14]
Id
at para 18.