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2024
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[2024] ZALCJHB 171
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Clifton v Glencore Operations SA (Pty) Ltd and Others (JR688/21) [2024] ZALCJHB 171; (2024) 45 ILJ 1639 (LC) (25 April 2024)
IN
THE LABOUR COURT IN JOHANNESBURG
CASE
NUMBER: JR688/21
Reportable
In
the matter between:
LUELLA
CLIFTON
APPLICANT
and
GLENCORE
OPERATIONS SA (PTY) LTD
FIRST RESPONDENT
E
JULIUS
N.O
SECOND RESPONDENT
CCMA
THIRD RESPONDENT
Heard:
12 March 2024
Delivered:
25 April 2024
Summary:
The
dispute between the employer and employee concerns the date of
dismissal. The employee maintains that termination of employment
happened on 31 August 2020 as set out in a collective agreement with
unions following a section 189A process, and that she is entitled
to
a retrenchment package of approximately R1.1 million. The employer
maintains that she committed misconduct, and was dismissed
for that
reason on 29 September 2020 and no severance pay is due. The court
found on a conspectus of the facts that the employer
was entitled to
take disciplinary action in September 2020 against the employee, and
that the arbitrator had not committed a reviewable
defect in finding
the dismissal fair.
JUDGMENT
Norton
AJ
Introduction
1.
During
mid 2020 Glencore (or the “employer” or “First
Respondent”) embarked on a large scale retrenchment
process.
[1]
Ms Clifton (the “employee” or the “Applicant”)
was employed as a Cost Consultant since 2008, and was part
of that
process.
2.
The
issue before this court is the date of termination of employment and
the consequences that flow thereafter. Ms Clifton says
in was the 31
August 2020, whilst Glencore maintains it was 29 September 2020. What
turns on the timing of the termination is that
if the date of 31
August can be sustained then Ms Clifton is eligible for payment of a
generous retrenchment package (of approximately
R1.1. million); if it
is 29 September then she is not, as the termination on that date
constitutes the date of dismissal for misconduct.
3.
After
Glencore dismissed Ms Clifton she referred an unfair dismissal claim
to the CCMA. She argued that at the time of the dismissal,
she was no
longer an employee and therefore disciplinary action taken against
her in September 2020 was null and void. Consequently,
the
termination date of 31 August 2020 applies and accordingly, so Ms
Clifton argues, she is owed a retrenchment package, along
with her ex
colleagues.
4.
Glencore
in turn argues that the termination date of 31 August applied to the
majority of employees but not her as she applied for
re-deployment
and that process had not concluded. Furthermore she attended work
sporadically during September, utilised the company’s
medical
aid benefit, and was paid for that month. She was according to
Glencore still an employee in September, and as such the
company was
entitled to take disciplinary action against her during that month.
5.
At
the CCMA only procedure was challenged and not the substantive
fairness of the dismissal. The CCMA found that her dismissal was
fair. The commissioner’s arbitration award issued by the CCMA
on 12 March 2021 is now the subject of Ms Clifton’s review
challenge.
6.
Ms
Clifton submits that the commissioner committed a reviewable defect
in terms of section 145(2) of the LRA when finding that her
dismissal
by Glencore was fair.
The
arbitration award and the review challenge
7.
The
arbitrator summarised and analysed the evidence as follows:
With
respect to Ms Clifton’s version that the termination date was
31 August 2020:
7.1.
A
collective agreement signed with the unions put the termination date
of employment at 31 August 2020
[2]
7.2.
She
had agreed with her financial manager (Mr Metler) that she would
carry out a handover of her duties in September, that this
was done
in good faith because she could not do so during August because she
had injured her knee.
7.3.
She
said Mr Metler had told her that her termination date would be 31
August 2020 (but she did not call him to testify).
[3]
With
respect to Glencore’s version that the termination date was 29
September:
7.4.
Glencore
had not provided Ms Clifton with exit documents, unlike other
employees who terminated on 31 August 2020.
[4]
7.5.
Ms
Clifton had signed a VSP but it had not been approved by the
employer.
7.6.
Ms
Clifton continued to work in September.
7.7.
The
re-deployment selection process continued after 31 August 2020.
[5]
8.
The
commissioner concluded,
Having said
the above, I am of the view that the Respondent has successfully
discharged the onus as required for section 191(2)
of the LRA and the
Applicant is not entitled to the relief as requested I find that the
Applicant’s employment was not terminated
on 31 August 2020 and
that the Applicant’s dismissal date was 29 September 2020 as
per the outcome of the disciplinary hearing.
The Respondent was
therefore well within their rights to take disciplinary action and
dismiss the Applicant
…
The
Applicant’s dismissal was procedurally fair
.”
9.
Ms
Clifton avers that the commissioner’s conclusions were
“
unreasonable…based
on irrelevant considerations,
(that
she ignored
)
relevant evidence and misconceived the nature of the enquiry
.”
[6]
Her reasons / grounds are as follows:
9.1.
The
VSP form “
did
not reflect whether my application was approved or rejected. It was
left blank…It is evident from the collective agreement
that my
services had to be terminated, either on a voluntary or forced basis,
by no later than 31 August 2020.
”
[7]
9.2.
“
I
returned to the office during my first week in September 2020. The
second respondent failed to appreciate why…she ignored
relevant evidence that I had a discussion on 28 August 2020 with Mr
Aron Metler during which he informed me my services would be
terminated on 31 August 2020...but he still needed me to do the
handover…(
Glencore
)
failed to call Metler to dispute my evidence
…”
[8]
9.3.
“…
I
was not redeployed
…”
[9]
9.4.
“(Glencore)…
evaded
the terms of the collective agreement by simply ignoring its
provisions
”
[10]
10.
In
summary it can be gleaned from the Applicants pleadings that there
are two main grounds: (firstly) that the commissioner failed
to pay
sufficient attention to the termination date of 31 August 2020 in the
collective agreement – and that strict compliance
was required;
and (secondly) the commissioner erred by assuming that the onus to
call Mr Metler to testify rested with the Applicant
and not Glencore.
The
evidence
11.
Following
the section 189 A process (between 17 June – 16 August 2020)
led by the CCMA, Glencore signed a collective agreement
with NUMSA,
NUM, Solidarity and non unionised representatives on 14 August 2020.
12.
The
agreement made provision for voluntary severance packages (“VSPs”),
alternatively forced retrenchment packages.
The agreement also made
provision for re-deployment and in those circumstances severance
would not be paid. If re-deployment was
not possible then the
employee would be eligible for a VSP. VSPs were subject to management
approval.
[11]
The termination
date was set for 31 August 2020. Upon termination the company would
provide the employees with service certificates,
retrenchment
letters, exit medical certificates, UI-19 forms and the like.
13.
Ms
Clifton applied for a VSP on 3 August.
[12]
14.
Ms
Clifton applied for Re Deployment on 7 August.
[13]
15.
On
21 August Glencore issued a circular to employees which read,
“
Please
note that employees who indicated their interest to be redeployed
will not exit on or before 31 August 2020…Employees
who
indicate that they would like to be redeployed will be accommodated
where possible. If you get redeployed you will be transferred
to that
unit and not receive a VSP. Once you have been informed that there
are no suitable positions in which to accommodate you,
you will
receive your VSP and exit. We foresee that this process will be
finalised during September 2020
.”
[14]
16.
Ms
Clifton took sick leave from 24 – 27 August, and again from 4 -
14 September 2020.
[15]
17.
Glencore
suspended her on 4 September and charged her with three counts of
gross misconduct arising from events that took place
between 26 July
to 31 August 2020. Ms Clifton did not attend her disciplinary hearing
scheduled for 28 September and she was dismissed
on 29 September. Ms
Clifton triggered the internal appeal process, without success, and
her dismissal was confirmed.
18.
Glencore
called Ms Zylstra to the CCMA to testify. In summary she testified
that:
18.1.
If
employees (like Ms Clifton) applied for VSP the retrenchment date
would be 31 August. A VSP was not automatic and required management’s
approval. If approved the employees would be required to sign a
voluntary retrenchment agreement.
[16]
18.2.
If
the employee applied for redeployment, a recruitment and selection
process would follow, and that would be completed between
September
to October 2020. VSPs were subject to management approval.
18.3.
The
redeployment process was continuing at the time Ms Clifton was
suspended. Her VSP would only be considered once it was clear
that
she couldn’t be redeployed.
[17]
18.4.
Ms
Clifton did not receive exit documents, because Glencore did not
envisage her departure by 31 August.
18.5.
She
attended work and later submitted a sick note in September –
not the usual conduct of someone who claims to have terminated
employment by 31 August.
[18]
19.
In
summary Ms Clifton relied on the termination date in the collective
agreement, she argued that she sought to complete a handover
of tasks
on a gratuitous basis in September, and that Mr Metler had informed
her that the termination date would be 31 August 2020.
20.
She
also testified that she was not offered any alternative positions.
There were no vacant positions she said.
21.
In
cross examination Ms Clifton conceded that she had received no
notification from Glencore that her VSP had been approved; that
she
had seen the communique of 21 August; and that she had used the
medical aid on the basis of being an employee and not as a
direct
paying member.
[19]
Discussion
and analysis
22.
In
the Applicant’s Heads of Argument they argue that Glencore was
bound by the terms of the collective agreement. Of course
they were,
but that does not mean that Ms Clifton’s termination date was
the 31 August as mentioned in that agreement. Context
is important.
As the Labour Appeal Court said in
Hurbert
v Head of Education: Western Cape Education Department and others
[20]
when interpreting a collective agreement subject to a labour dispute,
“
context
and purpose must be taken into account as a matter of course
…”
[21]
23.
It
is clear from the agreement that if an employee applied for
redeployment (as Ms Clifton had) then a VSP would not apply if the
redeployment was successful. It could never be in that context then,
that despite this provision the termination date would in
all
circumstances be 31 August.
24.
As
mentioned Ms Clifton had applied for redeployment, and on 21 August
Glencore had informed staff that the redeployment process
would take
place after the retrenchment process had completed, and that if
redeployment was not possible that the termination date
with payment
of a VSP would take place in September or October.
25.
The
agreement also set out the administrative documents / exit documents
which would be provided to terminating employees. It is
common cause
that these were not provided to Ms Clifton. The inference is clear –
Glencore did not contemplate her termination
on 31 August.
Furthermore the agreement makes it clear that the VSP is subject to
management approval. There had been none in Ms
Clifton’s case.
26.
The
Applicants cannot simply rely doggedly on the termination date of 31
August in the collective agreement when faced with the
context of the
other factors such as the need for VSP approval as well as the
provision of exit documents prior to termination
(which were not
provided to her). This first ground of review thus fails.
27.
On
the issue of Mr Metler and the weight to be accorded to Ms Clifton’s
say so that he had told her that her termination date
would be 31
August; it is trite that she who avers must prove. The evidentiary
burden rested on the employee to adduce sufficient
evidence to combat
a
prima
facie
case made by the employer.
[22]
The evidentiary burden rested on her to call him as a witness to
testify to that date and she failed to do so. The evidentiary
burden
did not rest with the employer to disprove her says so by calling
him. At the end of the day, little weight can be placed
on Mr
Metler’s alleged utterance of the date. This second ground too
fails.
28.
Much
however can be placed on the fact that she continued working on an
adhoc basis in September (noting the sick leave), that she
was paid
for that month; that Glencore did not get back to her regarding
redeployment or a VSP in August or September, and that
she used her
medical aid in September.
29.
Finally
I need to comment on the irony that the employee advances a case that
Glencore had no right to dismiss her in late September
as (according
to her) employment had already terminated on 31 August. In other
words there could have been no dismissal in fact
or in law. Yet it is
the employee who seeks the protection of the CCMA’s unfair
dismissal jurisdiction under the LRA’s
unfair dismissal
provisions.
30.
Expressed
differently, it is notionally contorted, for the employee on the one
hand to ground her case on an alleged factual basis
that termination
of employment took place on 31 August, and on the other hand to seek
a finding from the CCMA that Glencore’s
dismissal of her for
misconduct on 29 September was unfair. Ms Clifton seeks the CCMA’s
refuge and remedy (compensation of
three months salary as well as
payment of the VSP) under the unfair dismissal regime, yet her
case relies on a finding that
arguably there was no dismissal, and
that the employment relationship came to an end on 31 August as per
the collective agreement.
A conundrum indeed.
The
test for review
31.
The
test for review is set out in section 145 (2) of the LRA – an
arbitration award may be set aside if the commissioner committed
misconduct, a gross irregularity or exceeded his or her powers, or if
the award was irregularly obtained. It is trite that
the test
is infused with the standard of reasonableness, established by the
Constitutional Court
in
Sidumo and another v Rustenburg Platinum Mines
.
[23]
The standard is expressed in the negative, “
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach
?”
32.
I
am persuaded that the commissioner did not commit a reviewable
defect, based on the discussion of the evidence set out above.
Her
award and analysis was entirely sensible, reasonable and justifiable.
Both grounds of review have failed.
33.
Regrettably
Ms Clifton committed misconduct towards the end of her career with
Glencore during the retrenchment and exiting process.
The nature of
the misconduct is left unsaid in the pleadings and record. She was
dismissed and thus lost what would have been her
right to an
attractive severance package, or to continued employment by way of
the redeployment process. She has desperately sought
to recover the
situation in the CCMA and now in the Labour Court. Neither can come
to her assistance.
34.
In
the circumstances I make the following order:
Order
35.
The
review application is dismissed.
36.
No
order as to cost.
D
Norton
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: Adv Basson
Du
Toit Smuts
For
the First Respondent: D Masher
Edward
Nathan Sonnenbergs Inc.
[1]
As per section 189A of the LRA
[2]
Para 32
[3]
Para 35 and 36
[4]
Para 38
[5]
Para 38
[6]
Para
31 of the Founding Affidavit
[7]
Para 31.1
[8]
Para 31.3 and 31.4
[9]
Para 31.6
[10]
Para 31.7
[11]
See too the notification dated 28 July 2020 on pg 98 “
Your
application will be subject to management approval
.”
Signed by the COO – Amanda Magro
[12]
Applicant’s Heads of Argument, para 5
[13]
[g 94
[14]
Pg 96
[15]
Answering Affidavit, para 14
[16]
Ans Affidavit, paragraphs 23.1 and 23.2
[17]
Ans Aff para 23.3
[18]
Para 23.5
[19]
Paragraph 24 of the Answering Affidavit.
[20]
(2022)
43 ILJ 1678 (LAC). See too
Cape
Clothing Association v De Vos & others
(2014) 35 ILJ 469 (LC)
[21]
At
para 13
[22]
See
Principles
of Evidence
,
PJ Schwikkard, para 31.2 at pg 638
[23]
CCT 85 / 06