Freshmark (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (JA12/2001) [2002] ZALAC 29; (2003) 24 ILJ 373 (LAC); [2003] 6 BLLR 521 (LAC) (11 December 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2002
>>
[2002] ZALAC 29
|

|

Freshmark (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (JA12/2001) [2002] ZALAC 29; (2003) 24 ILJ 373 (LAC); [2003] 6 BLLR 521 (LAC) (11 December 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: JA12/2001
In the
matter between:-
FRESHMARK
(PTY)LIMITED APPLICANT
and
COMMISSION
FOR CONCILIATION FIRST RESPONDENT
MEDIATION
& ARBITRATION
VAN
DER WALT, J. ADRIAAN SECOND RESPONDENT
SOUTH
AFRICAN WORKERS’ UNION
ON
BEHALF OF MRS DE KLERK THIRD RESPONDENT
________________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO
JP
INTRODUCTION
[1] This
is an appeal from a decision of the Labour Court in an application
that had been brought by the appellant to have an arbitration
award
that had been issued by the second respondent, a commissioner of the
Commission for Conciliation Mediation and Arbitration,
(“
CCMA
”),
the first respondent herein, reviewed and set aside. The dispute to
which the award related was between the appellant and the
third
respondent, the South African Workers’ Union, acting on behalf of
one of its members employed by the appellant, one Mrs Hendriena
De
Klerk, (
“the
employee”
).
The employee had previously been employed by the appellant but was
dismissed for operational requirements. The dispute was whether
or
not the appellant was obliged to pay the employee severance pay.
[2] In
the arbitration proceedings before the CCMA the commissioner found
that the appellant was obliged to pay the employee severance
pay. The
appellant then brought an application in the Labour Court to have the
award reviewed and set aside. The Labour Court, through
Landman J,
dismissed the application. The appellant appealed to this Court
against the judgement of the Labour Court. In that appeal
this Court,
through Joffe AJA (with myself and Mogoeng JA concurring) noted that
the record of appeal was incomplete in that part
of the evidence of
the employee before the commissioner was missing. This Court decided
that the Court a quo should not have considered
the review
application when the record was not complete since the missing
portions of the evidence were material. This Court set
the decision
of the Court a quo aside, directed the appellant to rectify the
defect in the record and granted the appellant leave
to approach the
Labour Court afresh on the same review papers once there was a
complete record.
[3] In
due course the appellant rectified the defect in the record. The
review application was set down for hearing in the Labour
Court. Once
again the review application came before Landman J who, after hearing
argument, came to the same conclusion as before.
He, accordingly,
dismissed the review application and granted the appellant leave to
appeal to this Court. This appeal is against
Landman J’s judgement.
The
facts
[4] The
employee was employed by the appellant in 1984 as a debtors’ clerk.
When she commenced her employment, her terms and conditions
of
employment required her to work a five day week, namely, from Monday
to Friday. Due to the appellant’s operational requirements
the
appellant and the employee agreed in 1993 to effect a change in the
employee’s conditions of employment so that she would work
every
third Saturday. In November 1997 the appellant’s Port Elizabeth
branch got a new branch manager, one Mr Manley. After Mr
Manley had
started managing the Port Elizabeth branch, it soon became clear to
him that there was a need to make certain changes
in the operation of
the branch in order to meet its operational requirements. Some of the
factors that necessitated changes were
a change in business practice
in the retail sector, a high growth of the appellant’s business and
the introduction in the retail
sector of trading on Saturdays and
Sundays.
[5] It
appeared to Mr Manley that it was necessary that the branch provide a
comprehensive service on Saturdays. At that time only
one employee in
the administration department of the branch worked on Saturdays. The
administration department was the department
in which the employee
was employed. The volume and pressure of work on the single employee
working on Saturday was such that the
employee would normally only
finish work at about 16h00. Employees took turns to work on
Saturdays. There were four employees in
the department. They worked
on the basis that each one worked every third Saturday.
[6] One
of the reasons for the increase in the volume of work for the branch
was that certain shops had been added to the list of
shops with which
the branch was doing business. In January 1998 Mr Manley called the
staff to a meeting to discuss the problem relating
to Saturday work.
At the meeting he explained to the staff the changes that had
occurred in the business environment in which the
branch operated. In
particular he explained that, because of the introduction of extended
trading hours in the retail sectors, many
shops to which the branch
supplied fresh produce opened till late in the night on Fridays, and
also opened until about 17h00 on Saturdays.
He said that some of the
shops had begun to ask that the branch make deliveries on Saturday
mornings. He said that having one staff
member on duty on Saturday
was not working. He told the staff that the branch had to make
certain adjustments. He told them that
in Cape Town - where he had
been before - they had gone through the same situation and had made
adjustments and these had worked.
[7] Mr
Manley proposed to the staff that the four staff members in the
administration department be divided into two teams of two
and the
teams work alternate Saturdays. He said that this would enable the
branch to provide a better service to the retail shops.
He also
stated that, if one person worked alone on a Saturday, he or she
finished late in the afternoon but, if two people worked
together, it
was likely that they would finish the work at about midday. The staff
said that they understood the problem. Except
for the employee, they
all agreed to the proposed change in their conditions of employment.
In due course the staff started working
every second Saturday. Mr
Manley testified that the change worked very well.
[8] As
indicated earlier, the employee was the only one among the staff who
did not agree to work every second Saturday. On the 27
th
March 1998 Mr Manley held a meeting with the employee to discuss the
matter. He summarised the discussion he had with the employee
in a
memorandum dated the 17
th
April 1998 which he addressed to one Judith. The memorandum reads
thus:
“
Memorandum
To: Judith
CC:
From: Mark
Manley
Date: 04/17/98
re: Discussion
with Drinie de Klerk re: work on every alternate Saturday due to
operational requirements
__________________________________________________
Judith
Drinie
de Klerk was asked to join Mark Manley and Karen Grewar in Karen’s
office on Friday the 27
th
March 1989 for a discussion on the need for her to attend work on
every alternate Saturday due to operational requirements in the
admin
department.
Mark
explained that due to the increase in the workload in the admin
department because of the take on of the new OK business and
the fact
that our business is supplier to the retail trade who trade 7 days a
week it had become operationally necessary to form
2 teams in the
admin department to cope with the workload on Saturdays. Mark also
explained that all the staff in the admin department
had been
involved in a discussion in regard to this issue and that all the
staff members had agreed that it was a necessity in the
department
and had all agreed to the change in the amount of Saturdays now to be
worked by them, every alternate Saturday.
Mark
then asked Drinie if she would be willing to work every alternate
Saturday with one of the admin teams so as to spread the workload
and
enable there to be a fair balance of the work apportioned to each of
the team. Drinie replied categorically that she would not
be able to
work every second Saturday, as she was not originally employed to
work on Saturdays when she joined the company in August
1984. She
maintained that she agreed with Merrick Coetzee’s request to work
every third Saturday when he requested that approximately
2 years ago
but was in no way willing to work every second Saturday.
Mark
then asked her what exactly her reasons for this decision were. She
replied that firstly she wasn’t paid enough to work every
second
Saturday and it wasn’t in her contract to work alternate Saturdays.
Secondly she said it was a problem because her husband
had to bring
her to work which he does every morning on the Saturday mornings
which he does every morning but it was nuisance for
him as they own a
smallholding outside PE which they like to visit on the weekends but
if they had to wait for her to finish work
they would get to the
smallholding late on the Saturday. Drinie then said that her work was
always up to date and she did not see
the necessity for her to have
to come in to work to help in the department. Mark then asked Drinie
if she was up to date with her
work then surely it would be easy to
assist on the Saturday morning so that the admin department as a
whole would be up to date with
their work a lot quicker as she was
employed to work in the admin department and to assist wherever
necessary within the branch.
Drinie then replied that if she came in
on Saturdays it would be to do only her work as she had too much work
to do and could not
afford to help any one else with their work.
Mark
then asked her once again if she would not reconsider her decision
regarding working alternate Saturdays as it was an operational
requirement and since the other people in the department had started
working the alternate Saturdays they were finding it very beneficial
and were finding that they were coping better with the workload and
were more up to date with their work.
Drinie
replied absolutely not and that she was only prepared to work every
third Saturday as she had originally agreed to with Merrick
Coetzee.
Mark
then thanked her for attending the discussion and said he would get
back to her later.
Mark
Manley”
[9] By
May 1998 the rest of the employees in the administration department
had long been working every second Saturday. The employee
was still
in the appellant’s employ but was still refusing to work every
second Saturday. On the 22
nd
May 1998 Mr Manley had another meeting with the employee to discuss
the problem and to try and persuade her to agree to work every
second
Saturday or to find a way of avoiding her retrenchment to make way
for somebody who would be prepared to work every second
Saturday. The
discussion that took place at that meeting is captured in a minute
dated 22 May 1998. It is appropriate to quote that
minute from the
fourth paragraph thereof. From that paragraph it reads thus:-
“
Drinie
replied that she did not see the need to work every second Saturday
as her work did not require it and that when she was employed
she was
employed as five days a week. She said that Mark has no right to just
change everyone’s hours as he feels and that she
knows her rights
as her husband is on the Motor Industrial Council and that she knows
that is it unfair practice to just change a
persons working hours.
Mark
stressed that he was not requesting her to work on Saturdays because
he wanted it, but that it had become an operational necessity
for all
to work these days. He explained that after previous discussions
between himself, Drinie and Karen, he has started looking
for
alternative solutions, which be wishes to discuss with Drinie for her
to consider and also give her the opportunity to provide
alternative
solutions.
The
first option is alternative employment in the packhouse, including a
possible demotion. Drinie became very upset at this stage
and asked
Mark if he was trying to get rid of her. Mark replied that he is
trying his best to avoid looking at retrenchment as an
alternative
and are therefore looking at any other options open to her. Drinie
mentioned the switchboard position, saying she would
be able to
handle that, but immediately realised that the switchboard position
requires working every Saturday. All present agreed
that there are no
other positions in the packhouse not working at least every alternate
Saturday.
The
second option was alternative employment options i.e. part-time or
casual positions. Having looked at the current operational
plans it
was clear that there are no vacancies for casuals or part-time
employment. Drinie was adamant that she was not open to this
alternative.
The
third option was a transfer to another branch. Drinie responded that
she is a married woman and was not open to transfers to other
branches. Mark asked Drinie if she was aware of any other solutions.
Drinie replied that she thinks Freshmark is treating her unfairly
as
she was taken on to work 5 days a week and was being paid the lowest
salary in the administration department. Karen asked her
how she knew
she was being paid the lowest, as this was confidential information
and she replied the she knew many things and that
the walls had ears.
Mark explained that her salary was not the issue as we were not
negotiating salaries. Drinie said that she worked
very hard, harder
than any other person did in admin and regularly had to work late or
take work home to get her work done. She mentioned
that her husband
had asked her whether she was married to Freshmark or him.
Karen
asked if this was not an indication that she needed to work
alternative Saturdays to manage her work and she had before
complained
that she could not get to her work because of the queries
for balances from the debtors. She replied that she works overtime as
she
had too much work as she is doing the accountant’s work. When
asked to explain, she said that the job she was given the previous
week to do was the accountant’s job and not hers. Karen explained
that the work she was given was Drinie’s as it was analyzing
transactions and payments for debtors, which is Drinie’s
department.
Drinie
replied that her work was becoming too much and that she was not
being paid enough for the work she is putting in. Karen replied
that
the reason she had to work at home was that she is not working fast
enough and is making errors in her work. Drinie denied that
she works
slow and asked why Karen had not brought this up before. Karen said
that she was monitoring Drinie’s work and had not
yet had a formal
discussion with her regarding her work, but will deal with it. Mark
then said that the issue under discussion was
not work performance
but the operational issue of working alternative Saturdays and that
everyone must please deal with this issue.
Mark
asked Drinie why she is now saying she cannot manage her work whereas
in the beginning she said that she did not need to work
alternative
Saturdays, as her work did not require it. Drinie said that Freshmark
is not paying her enough to work every second Saturday
and if they
would look at her salary and adjust it, she would consider working
every second Saturday. Mark asked her if she is stating
this as a
solution to the problem and she confirmed this. She said that if she
were being paid for the extra hours she would work
it.
Mark
told her that the decision lies with Freshmark Head Office and that
he will put the option to them. He asked Drinie if there
were any
other alternatives she had to the problem, to which she replied no.
He asked her if she wanted some time to think of any
other solutions
and she said that she wanted to discuss the issue with her husband
and would speak to him the next morning.
Mark
then said that the meeting would be adjourned till the Monday morning
at 9 o’ clock when Drinie can propose alternative solutions
to the
problem. He said that he will wait till Monday morning for all the
proposals or alternatives before putting the salary issue
to Head
Office.”
[10] On
the 25
th
May 1998 the employee wrote a letter to Mr Manley in which she
indicated that her contract was based on a five day week. She said
that at one stage her conditions of employment had been unilaterally
changed to require her to work every fifth Saturday but later
this
was changed to be every third
Saturday
but now she was being required to work every second Saturday. She
complained that she was being treated unfairly. She once
again said
that she was not being paid enough and her salary was not comparable
to the salaries of the other ladies in the department.
[11] Mr
Manley held another meeting with the employee on the 28
th
May. At this meeting the employee indicated that she was only willing
to do her own work and nobody else’s. Mr Manley explained
that an
employee was not employed to do a specific job but was employed for
the branch as a whole and had to help out where necessary.
Mr Manley
asked the employee if there were any available alternative employment
positions/capacities to consider to avoid retrenchment
and the
employee replied that there were none.
[12] At
some stage during the meeting the employee stated that she was not
prepared to work extra hours at her then salary. Mr Manley
also
restated at this meeting that he had previously discussed with the
employee the possibility of her being transferred to another
branch
but that she had said that she was a married woman and was not open
to such an option. The employee confirmed this as correct
and added
that she was not prepared to give up her husband or child in order to
take a transfer to another region. Mr Manley stated
that the only
alternative that the employee had given was that of the adjustment of
her salary. He said that it seemed that the main
reason why she was
refusing to work every second Saturday was related to her salary. At
this stage the employee said that, if her
complaint about her salary
was addressed and she was happy with it, she would work every second
Saturday. She said that she was taking
work home in order to cope
with her work and was feeling that she was not paid enough. Mr Manley
told her that whether or not her
salary could be adjusted was a
matter for the decision of the head office. He undertook to put the
suggestion to the head office.
On the 29
th
May a letter was sent to the appellant by the union. In the letter
the union stated that the employee was
“not
in a position to work every second Saturday”
and
asked the appellant from then onwards to communicate with the union
on the matter. The union sent another letter on the 6
th
June in which it alleged, among other things, that it seemed that a
lot of pressure was being exerted on the employee to agree to
work
every second Saturday.
[13] On
the 8
th
June a meeting was held between the appellant and the union. At that
meeting Mr Manley, having obtained the necessary mandate from
the
appellant’s head office, made an offer that, if the employee agreed
to work every second Saturday, she would be compensated
either by a
payment for the additional hours worked at normal hourly rate or she
would be given time off during the week in lieu
of additional
payment. Towards the end of the meeting the employee stated that she
would consider working on Saturdays if she was
compensated and could
get a full day off per month. Mr Manley then undertook to consult the
appellant’s head office on this but
stated that he did not foresee
a problem.
[14] On
the 9
th
June another meeting was held between the employee and Mr Manley and
others. The discussion that took place at that meeting is summarised
in a minute of the 9
th
May. The minute reads thus:-
“
Mark
opened the meeting by informing Drinie that it was acceptable to the
company for her to get the one day off per month if she
worked every
alternative Saturday and that the company would pay her at her hourly
rate for the extra 4 hours worked every month.
However if she would
like to rather have her hours reduced in the week to make up the
extra 4 hours that she will be working on the
alternative Saturdays
then the company could also accommodate her if she so wished. Drinie
replied no, she wanted to be paid for
the extra hours on the
Saturday. Mark replied that that would be arranged.
Drinie
then asked what would her hours be. Mark replied that from Monday to
Friday she would work from 08h00 to 17h00 with a 1-hour
lunch break
as per normal. Every alternative Saturday would be from 08h00 to
12h00. Drinie then said this would be acceptable. Mark
stated that he
was glad that this whole issue had finally been resolved and now we
could get on with business as per usual.”
[15] In
terms of the meetings of the 8
th
and the 9
th
June it can, therefore, be said that an agreement was reached between
the appellant and the employee that the employee would work
four
hours every second Saturday (i.e. 08h00 - 12h00) and she would be
compensated at normal hourly rate for those hours and would,
in
addition, be given one full day off per month. Subsequently, the
employee reneged on the agreement. In a letter dated the 9
th
June addressed to the appellant by the union, the union stated that
the employee was not prepared to work every second Saturday and
made
a proposal for a severance package for the employee. On the same day
the appellant responded and, after rejecting the contents
of the
union’s letter and stating that the matter had been exhausted and
they thought agreement had been reached, gave notice that
the
employee would be dismissed for operational requirements on the 15
th
June 1998. The appellant stated that until close of business on that
day it was still open to the employee to make representations
to the
appellant that would accord with the appellant’s operational
requirements which would result in the notice of termination
being
withdrawn.
[16] The
employee’s services were then terminated on the 15
th
June 1998 and no severance pay was paid to her by the appellant. The
appellant’s refusal to pay the employee severance pay was
based on
the contention that she had unreasonably refused an offer of
alternative employment and that, in terms of sec 196(3) of
the Labour
Relations Act, 1995 (as it stood prior to such provisions being
transferred to the Basic Conditions of Employment Act,
1998 (
“the
BCEA”
)
an unreasonable refusal of alternative employment by an employee
absolved the appellant from its obligation to pay severance pay.
The
union and the employee maintained that the employee was entitled to
payment of severance pay. This gave rise to a dispute. The
dispute
was then referred to arbitration under the auspices of the CCMA.
The
arbitration
[17] The
first question that the commissioner had to decide in arbitrating the
dispute was whether the appellant had offered the employee
“alternative
employment”
within
the meaning of that phrase in sec 196(3) when it offered the employee
continued employment in the same position but with one
change to her
terms or conditions of employment. Sec 196(3) read thus:-
“
An
employee who unreasonably refuses to accept the employer’s offer of
alternative employment with that employer or any other employer
is
not entitled to severance pay in terms of subsection (1)”.
[18] The
commissioner dealt in three paragraphs with the question of whether
the appellant offered the employee alternative employment.
Those
paragraphs read thus:-
“
The
difficulty for (sic) Mr Pitman’s argument is that the language of
section 196(3) is clear. It refers to an offer of alternative
employment. By no stretch of the imagination can it be said in the
present matter that the [appellant] offered alternative employment
to
the [employee]. It offered the [employee] the position she occupied
with a different condition, namely, that she had to work every
alternative Saturday.
This
change in conditions is the
operational
reason
for the termination of her services. It cannot also be an alternative
offer as envisaged in section 196(3).
It
does entail that an employer cannot escape the operation of section
196(1) when employees refuse to accept amended conditions of
service
and are dismissed for operational reasons. The employer can only
escape the effect of this section if a
different
position is offered and the employee unreasonably refuses to accept
such an offer. This was not the case in the present matter and
severance pay must be paid”
.
A
reading of these three paragraphs reveals that the commissioner held
that what the employee was offered did not constitute alternative
employment. The reason he gives for this conclusion is that the
employee was offered the same position that she was occupying but
with a different condition, namely, that she work every alternate
Saturday. He reasoned in the third of the paragraphs that an offer
of
“alternative
employment”
as envisaged in sec 196(3) entailed an offer of a
“different
position
”.
There is only one statement that the commissioner made in the award
that seems to contain his reason for construing the phrase
“alternative
employment
”
in sec 196(3) as necessarily entailing a different position. That
statement reads:
“This
change in conditions is the operational reason for the termination of
her services.
It
cannot also be an alternative offer as envisaged in section 196(3)”.
I am not certain what the commissioner was trying to convey with this
statement.
Proceedings
in the Labour Court
[19] In
the review application that was brought in the Labour Court, Landman
J held not only that the commissioner’s construction
of the phrase
“alternative
employment”
was
justifiable but also that the commissioner was correct
“in
saying that an offer cannot at the same time be the cause of a fair
dismissal and the cause of an exemption or defence to an
application
for severance pay.”
Towards
the end of par 7 of his judgement Landman J had this to say in regard
to the phrase:
“alternative
employment.”: “In evaluating what alternative employment means
for the purposes of section 191(3) one would also
have to examine, in
the light of the third consideration, whether the refusal was unfair
and from this I conclude that the alternative
offer of employment
must be one which is reasonable. See also the observations of Mlambo
J in Sayles v Tartan Steel cc 1999 (20)
ILJ 1290 (LC).”
The third consideration that Landman J referred to was the question
whether the employee’s refusal of the offer was unreasonable.
There
is nothing in the observations made by Mlambo J in Sayles v Tartan
Steel that is relevant to the meaning of the phrase “
alternative
employment
”.
[20] I
am unable to agree that in determining what the phrase
“alternative
employment”
means for the purposes of sec 196(3) one would have to examine
whether the employee’s refusal of the offer was
unfair/unreasonable.
I think Landman J probably meant unreasonable
instead of unfair in this regard. Whether what an employer is
offering an employee
constitutes alternative employment within the
meaning of that term in sec 196(3) and whether, if it does, and the
employee rejects
such offer, such rejection is unreasonable are
totally different issues. If the offer does not constitute an offer
of alternative
employment as contemplated by sec 196(3), it does not
matter whether the employee rejects the offer and whether he or she
did so
unreasonably. In such a case he or she would be entitled to
payment of severance pay. If the offer does constitute an offer of
alternative
employment as contemplated by sec 196(3), and the
employee rejects the offer, whether or not he or she is entitled to
payment of
severance pay will depend on whether or not it can be said
that his or her refusal or rejection of the offer of alternative
employment
was unreasonable. If it was reasonable, he is entitled to
payment of severance pay. If it was unreasonable, he is not entitled
to
severance pay.
[21] I
am unable to agree with the commissioner that an offer by an employer
to an employee of the position he occupies but on different
or on new
terms or conditions of employment does not constitute an offer of
alternative employment within the meaning of that phrase
in sec
196(3). The employment which the employee had with the appellant was
on certain terms and conditions. These included the condition
that
she work every third Saturday. She was then offered employment on the
basis that most of the terms and conditions would be the
same as her
then existing terms and conditions but that there was to be a new
condition. That was that she would work every second
Saturday which
was going to be from 08h00 to 12h00 for which she would be paid at
her normal rate and she would be given one day
off per month. In my
judgement the phrase “
alternative
employment
”
may incorporate employment by the same employer in the same position
but on terms and conditions of employment that differ either
in some
or in all respects with the terms and conditions of employment that
applied to the employee before or at the time the offer
was made.
[22] It
is the employment that is required to be alternative and not the
position. Where an employee who is employed on certain terms
and
conditions is offered employment on terms and conditions that overlap
with those of his or her present employment by the same
employer,
that is still alternative employment. It is not necessary that there
be no overlap at all in the terms and conditions of
the existing
contract of employment and the terms and conditions of the contract
of employment that is offered. In
Public
Carriers Association v Toll Road Concessionaries (Pty) Ltd &
others
1990 (1) SA 925(A)
the court had occasion to consider the meaning of the phrase
“
alternative
road
”
within the context of s 9(3) of the National Roads Act, 1971 (Act no
54 of 1971) (
“the
Roads Act”
).
Sec 9(3) precluded the National Transport Commission from declaring
any portion of a national road under sec 9(1)(a) of the Roads
Act as
a toll road unless there was “
an
alternative road
”
to the toll road along which the same destination or destinations
could be reached as that or those to which the route of the
toll road
leads. In that case one of the issues that arose was whether the fact
that the non-toll road overlapped with the toll road
- which meant
that for some distance the people who wanted to use the non-toll road
had to travel on the toll road - about 79 kilometres
- but would
bypass the toll gates where the toll had to be paid - rendered the
non-toll road not to be an
“alternative
road”
within the meaning of that phrase in sec 9(3). The Court held that
that fact did not have the effect that the non - toll road was
not
an alternative road. At 944 E-F the Court, through Smalberger JA, had
the following to say:-
“
...
In the result the words ‘alternative road’ in s9(3) of the Act do
not mean a road entirely separate and distinct from the
declared toll
road, but mean an alternative route which may be travelled without
the need to pay toll to reach the same destination
as the toll road,
even thought it traverses sections of the toll road. In the present
case the designated alternative road satisfies
the requirements of an
alternative road
in s 9(3)
notwithstanding the fact that it has 79 kilometres of roadway in
common with the toll road.”
It
seems to me that it can equally be said in respect of the phrase
“
alternative
employment
”
in sec 196(3)that it does not necessarily mean, as the commissioner
seems to have thought, that there need not be any overlap
between the
terms and conditions of employment of the employee under the earlier
contract and the terms and conditions of employment
attached to the
offer. There can be such an overlap and it may include the same
position or it may be a different position.
[23] The
commissioner seems to have read the word “position” into sec
196(3). That can be inferred from the fact that he held
that an offer
of
“alternative
employment”
as envisaged by sec 196(3) necessarily meant an offer of a
“different position
”.
Sec 196(3) does not refer to an
“alternative
position”.
It
refers to “
alternative
employment”.
[24] The
purpose of sec 196(3) is to deny payment of severance pay to an
employee who unreasonably rejects an offer of employment
as an
alternative to his or her dismissal for operational requirements. The
rationale behind the provision is that, whereas the right
to
severance pay conferred by sec 196(1) is predicated upon the fact
that an employee loses employment due to no fault on his part
and,
should therefore, be paid some compensation therefor, 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. Accordingly, he
should not be
paid severance pay. 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.
[25] An
employer enters into a certain contract of employment with an
employee on certain terms and conditions because he or his business
or undertaking requires an employee who is prepared to work in
accordance with those terms and conditions in order to meet the
operational
requirements of the business or undertaking. When that
contract of employment as a whole or some of its terms and conditions
can
no longer serve or no longer suit the operational requirements of
the business, that is a valid reason for the employer to terminate
that contract of employment. However, if the employer has need to
employ an employee on a contract of employment that is different
either as a whole or only in some respects from the one that he has
terminated, or wishes to terminate the employer must offer the
new
contract to the employee whose contract of employment has been
terminated or is under threat of termination if that employee
is
suitable for employment on the terms of the new contract of
employment. If the employee accepts the offer of a new contract of
employment, he avoids being out of employment but this does not mean
that his previous contract of employment remains. It does not.
It is
cancelled or it is amended. In either case the employment of the
employee by the employer is subsequently governed by the terms
and
conditions of employment that are different from the terms and
conditions which previously governed his employment. From this
it is
clear that the position is that the reason why in this case the
contract of employment of the employee was terminated is that
it was
no longer suitable for the operational requirements of the employer,
but, the reason why the employee was not employed on
the new terms
and conditions, and, therefore, why she became unemployed is that she
rejected the appellant’s offer of employment
on terms and
conditions of employment that, save for one new condition, were the
same as the terms and conditions of employment that
governed her
employment.
[26] As
the commissioner has failed to give any statutory basis for his
reading “
alternative
position
”
into section 196(3), when the statute refers to “
alternative
employment
”,
I am left with absolutely no idea of the basis on which that
construction can possibly be said to be justifiable. Instead I am
of
the view that the construction, and, therefore, the conclusion, based
thereon is wholly unjustifiable. The commissioner’s construction
leads to results that completely undermine the purpose of sec 196(3).
[27] The
next issue for consideration is the question whether the employee’s
refusal of the appellant’s alternative employment
was unreasonable.
The commissioner did not consider this question because it became
unnecessary for him to do so once he had concluded
that the
appellant’s offer was not an offer of alternative employment. In
the first judgement Landman J also expressed the prima
facie view
that the employee’s offer was not unreasonable. In the second
judgement he indicated that, after Counsel had pointed
out various
passages in the evidence which indicated that the employee had
rejected the offer on monetary grounds, he found that,
if the
appellant’s offer was an offer of alternative employment, her
refusal of the offer was unreasonable.
[28] There
is no doubt that the appellant had a valid reason for the appellant
to work every second Saturday like all the other employees
in the
administration department in which she was working. It is common
cause that all the other employees in the department accepted
that
there were good reasons for the appellant to require them to work
every second Saturday. It is also common cause that they all
agreed
to work every second Saturday. Further, the evidence given by Mr
Manley that the change worked well and addressed the problem
it was
intended to address was not disputed.
[29] The
one reason that was advanced by the employee in support of her
rejection of the proposal to work every second Saturday was
that her
contract was for a five day week and to work every third Saturday.
That was no reason at all to justify rejecting the proposal
because
it was precisely that contract that was no longer suitable for the
appellant’s operational requirements. Another reason
relied upon by
or on behalf of the employee in support of her rejection of the
appellant’s proposal was that on Saturdays she and
her husband
normally went to their smallholding and, if she agreed to the
appellant’s proposal, this would be inconvenient because
the two
had one car and her husband would have to wait for her to finish work
at about midday before he could leave for the small
holding. The
employee did not explain why this would be a difficulty because she
was already working every third Saturday and one
can assume that on
such Saturdays her husband had to wait for her if they had to go to
their smallholding. In any event the inconvenience
that she
complained that they would suffer is not sufficient to justify her
rejection of the appellant’s proposal.
[30] The
last reason that was advanced - which was actually the main reason -
was that she was not paid an adequate salary to justify
her working
every second Saturday. She said that she would be prepared to work
every second Saturday if the money she was paid was
right. Mr Manley
referred this to the appellant’s head office. The appellant
ultimately offered to pay the employee at normal rate
for the four
hours it was requiring her to work every second Saturday and to give
her one day off once per month as well. Mr Manley
testified that the
employee then accepted this offer. She even asked what her hours of
work would be on every second Saturday. In
her evidence the employee
sought to deny that she accepted this. She said that she did not say
that definitely she was agreeing to
the proposal. She said that she
had been put under tremendous pressure to agree.
[31] I
think that on the probabilities the employee accepted the offer. A
reading of Mr Manley’s evidence seems to make this conclusion
inevitable. The employee later changed her mind and reneged on the
agreement. She had no acceptable reason for not proceeding on
the
basis of the agreement. Accordingly her rejection of the appellant’s
offer of alternative employment was unreasonable. However,
even if
the matter were to be decided on the basis that she did not accept
the appellant’s offer, this would not make any difference
in the
end because she offered no sound reason for not accepting the
appellant’s offer of alternative employment. Indeed, her rejection
of the offer was, even on the basis of that version, unreasonable.
Accordingly on either version the employee unreasonably refused
the
appellant’s offer of alternative employment and this disentitled
her to payment of severance pay.
[32] In
the result the appeal must succeed. As the review application in the
Court a quo and the appeal in this Court were not opposed,
it is, in
my view, fair that no order should be made as to costs.
[33] I
make the following order:-
1. The
appeal is upheld.
2. The
decision of the Court a quo is set aside and replaced with the
following order:-
“
(a) The
award issued by the Commissioner for Conciliation Mediation and
Arbitration in this matter is hereby set aside and is replaced
with
the following award:
‘
(i)
the applicant is not entitled to severance pay and her claim is
dismissed.”
____________
ZONDO
JP
I
agree.
__________
Nicholson
JA
I
agree.
________________
Van
Dijkhorst AJA
Appearances:
For
the respondent: No appearance
For
the appellant: Mr A Reddy (Heads of Argument having been drawn by
Mr A. Franklin S.C.)
Instructed
by: Perrott, Van Niekerk & Woodhouse Inc
Date
of hearing: 1 March 2002
Date
of judgement: 11 December 2002