Mzolo and Others v Toyota SA Marketing, A Division of Toyota SA Motors Ltd (DA6/2001) [2002] ZALAC 30 (11 December 2002)

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[2002] ZALAC 30
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Mzolo and Others v Toyota SA Marketing, A Division of Toyota SA Motors Ltd (DA6/2001) [2002] ZALAC 30 (11 December 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT DURBAN.
Case
No. DA6/2001
In the matter between
LUCKY
MZOLO First Appellant
JOSHUA
WANDA Second Appellant
SONNY
SARDEO Third Appellant
ELLIOTT
GUMEDE Fourth Appellant
JEFF
PERKINS Fifth Appellant
COLIN ARNOLD VICTOR
COOMBE N.O.
(In his capacity as
Executor of the Estate Late
WILLEM EDMUND YATES,
as substituted) Sixth Appellant
WILSON
BELL Seventh Appellant
GLEN
DHAMPAL Eighth Appellant
LES
SINGH Ninth Appellant
ALBERET
LECHELA Tenth Appellant
NEIL
GALWAY Eleventh Appellant
TOM
WALMSLEY Twelfth Appellant
GARY DE BORLE
Thirteenth Appellant
And
TOYOTA SA MARKETING,
A DIVISION OF TOYOTA
SA MOTORS LTD Respondent
JUDGMENT
DAVIS AJA
INTRODUCTION.
[1] Applicants were retrenched by respondent in
December 1998 and January 1999. They brought an action in the Labour
Court challenging
their retrenchment on both procedural and
substantive grounds.
Pillay AJ
decided that the dismissal of
appellants for operational reasons was both substantially and
procedurally fair. Appellants have
now appealed to this court
against that decision.
ESSENTIAL FACTS
[2] At all material times appellants were
members of the Staff Association for the Motor and Related Industries
(‘SAMRI’).
[3] The process
culminating in the dismissal of appellants for operational
requirements commenced on 21 November 1997 when at a
meeting the
respondent’s management gave SAMRI an overview of the prevailing
international local economic trends, their likely
impact on
respondent’s operations and offered a range of possible
solutions.
[4] At that meeting
slides were used in order to assist in the presentation. A slide
headed ‘Consequence and action’ provides
a clear indication of
the nature of the presentation :
Excess manning during 1998
Consider redeployment of excess employees
Stop external recruitments except T skills
Explore other options
If above options do not resolve excess manning
situations severe impact on profitability, loss of shareholder
confidence and retrenchments.
[5] On 12 February 1998
respondent and SAMRI held a brief meeting during the course of which
respondent recapitulated the contents
of the presentation on 21
November 1997 and indicated that it would initiate a process to deal
with excess manning in due course.
[6] On 3 March 1998
respondent issued a notice to all employees, the following extract
from which is of particular relevance
‘With reference to
the planned deduction of manpower at Toyota the state of
proceedings is as follows:
Consultation with
NUMSA, SAMRI and other employee representative groups commenced
during 1997.
During these
consultations management explained the need for reduction of the
employees as being
Volume related…
Loss of business
and process Redesign…
To remain a viable competitor in the fiercely
contested South African Motor Manufacturing arena, it is of vital
importance that tough
decisions are made in order to survive.
[7] The above decision
to retrench was not taken lightly and all efforts are being made to
avoid job losses…’
[8] A further slide presentation was made to
SAMRI on 7 March 1998. This meeting raised the need for
respondent to address efficiencies
and possible restructuring in
order to achieve world class manufacturing standards. SAMRI was
also informed of a proposed ‘
benchmarking
trip’
to the United Kingdom and
the United States.
[9] On 20 April 1998 a further notice was sent
to all employees in which it stated that the latest forecast for
vehicle demand had
showed a
‘tentative
improvement in the forthcoming three months’,
as a result of which management had committed itself to stable
yield volumes for the period ending September 1998. In the light
of this decision, management has agreed to suspend retrenchment
consultations with the National Union of Metal Workers (
‘NUMSA’
)
September. According to the evidence of Mr. Thomson, respondent’s
General Manager Human Resources, it was intended that
discussions
with SAMRI about manning levels would continue.
[10] A meeting was held on 20 April 1998
between respondent and members of SAMRI. At that meeting reference
was made to the
‘bench marking
trip’
to be undertaken by
executive management. SAMRI informed management of uncertainty
amongst employees with regard to which areas
have been affected as a
result of retrenchments and the identity of those affected. It was
contended that the structures resulting
from the bench marking
exercise required a comprehensive explanation to all stakeholders .
[11] Between 20 April
1998 and 23 June 1998 further correspondence was exchanged between
SAMRI and respondent but no consultations
took place in relation to
the position of the appellants.
[12] Of relevance was a letter written by SAMRI
on 24 April 1998 where reference was made to section 189 of the
Labour Relations
Act 66 of 1995 (as amended) (LRA). SAMRI then
referred to the meeting held on 20 April 1998 and the presentation
that had taken place
at that meeting and stated:
‘We
are not convinced that this can constitute sufficient rationale and
requested as a result that no further meetings on this issue
be held
at various plant levels but at a higher level as it is our view the
whole group is to be affected and not just your area
of
responsibility’
. SAMRI advised
respondent that it would give due and proper consideration to
representations made and if necessary
‘make
a formal request for further information as contemplated in terms of
the Act
’.
[13] Mr. Thomson replied on 5 May 1998 in
which he requested SAMRI to
‘forward….any
further points on which SAMRI (sought) clarity with regard to the
process of manning reductions which (the respondent
was then)
entering
’. He also advised SAMRI
that he would
‘call for a meeting
to discuss these points and to further the consultation in due
course
’.
[14] SAMRI replied on 7 May 1998 stating that
‘it has yet to receive written reasons/motivations for your
(respondent’s) contemplation as s189(3) prescribes. On 11 May
1998
respondent replied stating that, if SAMRI required further
information or should it be necessary to arrange another meeting
to
clarify the position ‘notify (the respondent) by Wednesday 13 May
outlining what its specific queries are.’
SAMRI
replied on 12 May 1998 stating that they wanted written reasons for
(the respondent’s) rationale so that (it might) consider
the same
and respond accordingly.’
[15] On 15 May 1998 respondent undertook to
provide SAMRI with the basis of its rationale for the proposed
manning reductions.
This was provided by way of a letter of 22 May
1998. In that letter respondent stated
‘[w]e
are prepared to meet yourselves to reiterate the rationale for
becoming a world class manufacturer’
and that
‘should SAMRI have any
suggestions or alternatives to the above that these would be dealt
with at the aforesaid meeting
’.
It also stated
‘if there is no
reasonable alternative to follow the path to become a World Class
Manufacturer then it would begin consultations
on the effect this
may have, if any, on manning levels, and the process to be followed’.
[16] On 22 June 1998 SAMRI referred to the
rationale set out on 15 May 1998 by respondent and said
‘We
must, with respect reject it as it gives no substance with which to
draw up a response’
. A meeting
was then held on 23 June 1998 to discuss the rationale for the
proposed manning level reduction. A memorandum of this
meeting
prepared by respondent, the accuracy of which was never contested by
appellants, claimed that
‘there
was general agreement about the rationale for Toyota to review its
manning levels and structures in order to remain competitive
and to
progress towards World Class Manufacturing standards’.
The memorandum then stated
‘having
reached consensus on the rationale for us to review manning levels
and structures, we shall now need to consult on the effect
of the
company proposal on these issues.’
[17] The next meeting of significance took
place on 12 October 1998. At that meeting respondent gave a slide
presentation to SAMRI
in which one slide contained the
following :
’
business will have to be resized due to volumes (2000 scenario
considered)
’.
[18] On 3 November 1998 respondent wrote to
SAMRI stating that
‘the serious
economic problems being experienced in South Africa and specifically
the severe adverse impact on the Motor Industry
made it necessary for
Toyota to now consider reducing manning levels. The threats to the
Motor industry are well documented and
their impact on Toyota have
been communicated to yourself on numerous occasions during recent
months, including written communication
from the Toyota Executive
Chairman .The memorandum then stated: ‘Several alternatives have
already been considered by Toyota
management ’
.
The memorandum then concluded:
‘We
trust information contained in this letter will enable you to
formulate appropriate responses and to participate fully in any
further discussions that revolve around reduction of manning’
.
[19] A further meeting
took place on 5 November 1998 between SAMRI and respondent.
Respondent explained that the reasons for the manning
process were
related to volume reductions, restructuring and the bench marking
exercise. Options which had been considered by respondent
were then
explained to SAMRI. The memorandum then stated: ‘Mr Thomson
requested that SAMRI consider possible alternatives through
retrenchment, and supply Management with written proposals by
Wednesday 11 November 1998.
[20] The memorandum
reflects SAMRI concerns thus:
* Pressure tactics (coercion) being embarked
upon a certain Line Managers to force employees to take the voluntary
severance package.
Outsourcing rumours at TSD
* Due to emotional pressure employees who are
affected should be offered EAP assistance.’
[21] These concerns were noted but
‘it
was stated that Management had taken a strong position against the
coercion of employees to take the voluntary separation package
and
the specific details were requested from SAMRI. SAMRI also recorded
concern regarding centralised versus decentralised consultation.
Mr
Thomson explained the specific process related issues to be consulted
on at plant level but that guidance on the governance of
the overall
programme would stem from the central manning meeting
’.
[22] On 12 November
1998 a further meeting was held during the course of which SAMRI
tabled its alternatives to retrenchment. Respondent
replied that
these alternatives would be considered and that a written reply would
be forwarded to SAMRI.
The memorandum of that
meeting also recorded that SAMRI reserved its right to request a
written explanation of the economic rationale
for the retrenchments.
Mr Thomson explained that the economic rationale had been dealt with
extensively in various recent meetings
and also in writing. SAMRI
expressed concern at the selection criteria TAC had been manipulated
to suit Management and said that
TAC’A PLANT employees had been
sacrificed at the expense of TAC”B PLANT employees. Mr Thomson
stated that Management would consider
all submissions by SAMRI and
that he would revert in writing as soon as possible.’
[23] On 17 November 1998 SAMRI addressed a
letter to respondent in which it claimed that as the meeting of 12
November 1998
‘was the first
opportunity we had to attend such a meeting, recorded at the
outset, that we reserved our rights to question further
information
to convince it as to the reason for the proposed redundancies’
.
SAMRI then stated:
‘We also
requested information on courses for salaried staff pertinent to your
training and retraining option. To date we have not
received the
information requested. On receipt hereof we may be in the position to
expand on the alternatives raised in our aforementioned
meeting.’
[24] On 19 November 1998 a further meeting was
held between SAMRI and respondent at which the severance packages,
the selection criteria
and the timing of the proposed retrenchments
were discussed. SAMRI requested
‘time
to forward comments regarding matters arising therefrom’
.
In response to SAMRI’s letter of 12 November 1998 and its queries
raised at the meeting of 19 November 1998, respondent addressed
a
letter to SAMRI dated 23 November 1998 in which it concluded by
inviting SAMRI to contact respondent if it had
‘any
queries’
.
[25] On 23 November 1998 respondent provided a
list of salaried employees affected by the
‘manning
reduction process’
and attached a
list of SAMRI members whose voluntary severance package applications
had been turned down. On 24 November 1998 SAMRI
raised concerns
regarding the position of a number of its members who were so
affected including six of the appellants. These concerns
related to
the fact that certain individuals had already been informed that they
were either redundant or about to become redundant
or that they
should take voluntary severance packages.
[26] On 25 November 1998 Mr Thomson wrote to Mr
Blaufeldt of SAMRI attaching the names and functions of the employees
who would be
affected by the manning reduction process. He then went
on to say:
‘Please note that we
shall continue to attempt, where possible, to find alternative
positions for those individuals, failing which
we shall be
terminating their employment at shut down.’
[27] A further meeting took place on 26
November 1998 where respondent confirmed the names and identities of
affected individuals
with reference to the list which had already
been sent on 25 November. SAMRI expressed ‘disagreement regarding
the rationale
used for redundancy saying that it was unaware that
World Class Manufacturing, bench marking and restructuring were part
of the rationale
for manning reductions and that ‘
it
was not in a position to discuss (the employees affected) due to the
fact that it was not consulted fully on the restructure rationale.’
It did undertake to submit written
queries regarding specific employees prior to December 1998.
[28] On 26 November 1998 respondent sent a
further notice to all employees advising them of the necessity to
proceed with the retrenchment
of certain employees, and inviting
them ‘to follow existing procedures should they wish to clarify any
uncertainties and
‘approach their
management structure in case of any difficulty which they might
experience’
.
[29] On 2 December 1998
SAMRI addressed a letter to respondent detailing those affected
employees in respect of which they had concerns
and ,in particular,
providing particulars thereof. The position of all appellants,
with the exception of eleventh and twelfth
appellants, (the latter
whose name had not appeared on any list), were canvassed in the
SAMRI letter.
[30] On 7 and 8
December 1998 respondent embarked upon a process in terms of which
individual managers were called upon to address
the concerns raised
by SAMRI in its letter of 2 December, particularly in relation to
appellants. At this meeting each of the managers
of the relevant
departments in which the potential retrenchees were employed
explained to SAMRI the rationale for the proposed restructuring,
the
manner in which they had applied the selection criteria and the
reasons for the potential retrenchees having been so identified.
[31] In his evidence,
Mr von Graevenitz, respondent’s senior manager: human resources,
described this meeting thus: ‘We had
all the managers of the people
affected there, we brought in one senior manager at a time, I asked
the person to go through the
structures, to go through the reasoning
behind the specific individual having to be retrenched, and then
opened the floor to questions
from SAMRI’s side, and then when all
the questions were basically said and done, the manager was released
and the next person would
come in. And that is how we proceeded right
through the whole exercise with every manager that had somebody
reporting to him who
were retrenched having given some answers or
some explanation’. At this meeting SAMRI requested a copy of
the bench marking
report for the very first time.
[32] Subsequent to this meeting Mr Thomson
wrote to Mr Blaunveldt of SAMRI confirming that contact had taken
place between SAMRI
and
‘senior
line management’
. He then said
‘following your representations in
this process we have decided to suspend the retrenchment of the
following individuals until end
January 1999 in order to properly
consider your final representations’
.
The tenth and thirteenth appellants were among those whose
retrenchment had been suspended. The services of the balance of
appellants
were terminated on 10 December 1998 and those of tenth and
thirteenth appellants on 30 January 1999.
[33] APPELLANTS CASE.
Appellants’ attack upon the substantive and
procedural fairness of the retrenchment procedure can be summarised
thus:
At no stage had
respondent achieved consensus with SAMRI regarding the necessity or
inevitability of retrenchments. The bench
marking exercise which
was critical to the decision to effect retrenchments remained
unknown to SAMRI whose officials were never
provided with a complete
set of benchmarking reports. Thus it could not be said that
respondent had consulted SAMRI at any stage
regarding the bench
marking exercise and hence the need to restructure around which the
decision to retrench had turned. Respondent
failed to disclose
relevant material information with the result that SAMRI was not in
a position to engage meaningfully with
the restructuring process.
[34] Respondent failed
to consult SAMRI regarding the applicable selection criteria ,
particularly in that it purported to apply
criteria before they were
even disclosed to SAMRI. In short, having unilaterally determined
the selection criteria to be applied,
respondent thereafter failed
to apply these criteria but rather applied criteria which were
inherently subjective, arbitrary and
in certain respects
discriminatory. Respondent also failed to consult in any acceptable
sense regarding alternatives to retrenchment.
EVALUATION.
[35] Before dealing with an examination of the
appellants’ argument it is convenient to refer ,albeit briefly, to
the purpose of
consultation as envisaged
in section 189 of the Act
.
In
Johnson and Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 at 96 (LAC
)
this Court said the following:
‘
[26] The section places some primary
obligations on an employer in order to ensure that an employee is not
unfairly dismissed. The
employer must initiate the consultation
process when it contemplates dismissal for operational reasons. …..It
must also disclose
relevant information to the other consulting
party….; it must allow the other consulting party an opportunity
during consultation
to make representations about any matter on which
they are consulting….; it must consider those representations and
if it does
not agree with them, it must give its reasons…
[27] But all these primary formal
obligations of an employer are geared to a specific purpose, namely
to attempt to reach consensus
on the
objects
listed in s189(2). The
ultimate purpose of s189 is thus to achieve a
joint
consensus-seeking process.
In this manner the section implicitly recognises the employer’s
right to dismiss for operational reasons, but then only if a
fair
process aimed at achieving consensus has failed.
[28]
The achievement of a joint consensus-seeking process may be foiled by
either one of the consulting parties. The employer may
obviously
frustrate it by not fulfilling its obligations under s189(1), (3),
(5), (6) and (7). The other consulting party may
do it by refusing
to take part in any of the stages of the consultation process, or by
deliberately delaying the whole process….It
may also appear that
one of the parties simply went through the entire formal process with
no intention of ever genuinely reaching
agreement on the issues
discussed. These different possibilities depend on the facts of
each particular case
’.
See also
Alpha
Plant and Services (Pty) Ltd v Simmonds and Others
(2001)
22
ILJ
359 (LAC) at 364-365;
Steyn and
Others v Driefontein Consolidated LGD t/a West Driefontein (2001) 22
ILJ 231 (LC )at 238
F.
[36] In the present
case respondent made its intentions clear at the presentation on 21
November 1997 at which members of SAMRI were
in attendance .It was
concerned about excess manning levels and accordingly advised SAMRI
that it was considering various alternatives
including redeployment
of excess employees, cessation of external recruitment except with
regard to key skills and , if all else
failed ,possible retrenchment.
Whatever SAMRI’S
concerns might have been with regard to the rationale for this
process, it never disputed the memorandum prepared
by Mr Thomson and
sent to Mr Cronje of SAMRI that consensus on the rationale to review
manning levels and structures had been reached
at the meeting on 23
June 1998.
[37] When the process
of retrenchment continued on 12 October 1998 because of the further
deterioration in economic and market conditions
faced by respondent,
no objection was raised against respondent’s rationale for the
process which it had recommenced even as late
as November 1998. At a
meeting held on 5 November 1998 SAMRI’s raised concerns about
pressure tactics being embarked upon line
managers to force employees
to take the voluntary separation package as well as rumours about
outsourcing. Respondent replied that
it had taken a strong position
against the coercion of employees to take voluntary separation
packages.
[38] On 12 November 1998 SAMRI raised the issue
of the economic rationale for retrenchment for the first time since
June 1998. Correctly,
in my view, Mr Thomson of respondent
explained that the economic rationale had been dealt with extensively
in various recent meetings
and also in writing. As the notes of the
meeting record
‘SAMRI then
expressed concern that the selection
criteria at TAC had been manipulated to suit Management and said that
TAC’A Plant
’ employees had been
sacrificed at the expense of TAC of ‘B Plant employees. Mr Thomson
stated that Management would consider
all submissions by SAMRI and
that he would revert in writing as soon as possible’.
[39] At the meeting of
12 November 1998 SAMRI proposed alternatives to the forced manning
reductions including allowing medically
unfit employees whose
applications for disability had been declined to be boarded , the
extension of the voluntary severance package
for another week, an
increase of the package for employees nearing retirement and the
demotion of employees as an alternative to
retrenchment and training
and retraining of employees.
[40] On 17 November 1998 Mr Thomson replied to
each of these proposals concluding that
‘unfortunately
we have to reduce our salaried staff on the retrenchment/redundancy
basis. We will therefore present to you at
our next meeting a list
of redundant positions and employees as well as proposed election
criteria for employees not in redundant
positions but who may have to
be retrenched.’
[41] A further meeting
was held on 19 November 1998 between SAMRI and respondent in order to
attempt to gain confirmation of the
selection process for severance
packages and the timing arrangements for retrenchments. On 25
November a list of the names and functions
of the employees that
would be affected by the manning reduction process was supplied to
SAMRI. On 7 December 1998 a meeting was
held in which the proposed
retrenchment of each of the appellants was considered.
[42] These facts
indicate that, notwithstanding criticism that could be leveled
against aspects of the evidence of certain of respondent’s

witnesses, the process had begun in November 1997 It had sought to
involve SAMRI from the outset. Through the many meetings which
were
conducted, SAMRI was provided with information that it requested and
informed of the process which respondent proposed to implement.
Much
was made by Mr Acker, who appeared together with Mr Wade on behalf
of appellants, of the bench marking report ,the outcome
of which Mr
Acker submitted had critical implications for respondent’s future
organisational structure.
[43] Mr Winchester who
appeared on behalf of respondent, observed that by June 1998
consensus had been reached with regard to the
rationale for the
process. Only on 7 December 1998 had SAMRI requested a copy of the
bench marking report despite the fact that
it had knowledge of the
process which had been undertaken and notwithstanding that certain
of its members had engaged in workshops
which flowed out of the bench
marking report and which, as Mr Thomson testified, were designed to
identify differences between
world class manufacturing operations
and those of respondent so that the objective of attaining world
class manufacturing standards
could be achieved.
[44] In my view,
respondent complied comprehensively with the duties imposed upon it
in terms of section 189 of the Act. It followed
a joint consensus
seeking process to the retrenchments for operational reasons. It
supplied SAMRI with comprehensive information
after the latter had
been put on notice in November 1997 that the possibility of
retrenchments was being considered. It held numerous
meetings with
representatives of SAMRI in which it attempted to explain the
process, achieve consensus and then individualize the
process by
examining each of the individual employees affected by the decision
to retrench. An open and transparent process was
initiated in
November 1997 in which respondent sought to engage SAMRI in
resolving a problem of manning levels which it had
defined by
means of a number of presentations. Thereafter SAMRI were afforded
every opportunity of participating in the process.
[45] To the extent
that it is appellants’ case that representatives of SAMRI or
any of the appellants considered that the
facts which I have
outlined did not accord with their perception of the process, it is
significant that no evidence was led by
appellants to justify the
existence of this perception .
THE TWELFTH APPELLANT .
[46] I now turn to
consider the case of the twelfth appellant, Mr Walmsley. Mr Walmsley
was apparently a machine tool fitter. His
duties entailed doing
machine maintenance. In 1998 he was injured on duty. The injury was
to his lower back. As a result of this
Mr Walmsley could no longer
do his normal job. The company gave him a temporary job in the
laboratory. Obviously this was done to
avoid dismissing him after he
could no longer do his job. Initially he was to work in the
laboratory for three months but he went
on for about nine months
until he was retrenched when the other appellants were also
retrenched.
[47] It is common
cause that until the 7
th
December Mr Walmsley’s name had never appeared in any of the lists
of employees who were in danger of being retrenched. On that
day his
name appeared in a list of employees who were to be retrenched. On
the 8
th
December he was called by his immediate superior, a Mr McConnel, to
the latter’s office Mr McConnel told Mr Walmsley that he had
been
retrenched but offered him the position of a driver. Mr Walmsley
asked him whether he would lose his car and other allowances.
Mr
McConnel confirmed this. At this point Mr Walmsley then said some
unprintable things to Mr McConnel suggesting what Mr McConnel
should
do with that job and said he was going to see his union. Mr McConnel
understood that Mr Walmsley was rejecting the offer of
the
alternative job.
[48] On the 9
th
December Mr Mc Connel offered the same job to the other employees who
had been retrenched. A Mr Naidoo, a member of the National
Union of
Metal Workers of SA, took the job. Mr Walmsley did not come back to
Mr Mc Connel. There was an attempt by the appellant’s
Counsel
during the cross-examination of Mr McConnel to suggest that Mr
Walmsley had not rejected the offer that Mr McConnel made
to him but
that he had wanted to consult his union first. This attempt was to no
avail in the end because under cross-examination
Mr Walmsley conceded
that he had in effect rejected the offer. He regretted the fact that
he had rejected it. This can be inferred
from a statement that he
made under cross-examination in this regard. The statement was:
“You
do things at a certain time when you are under pressure that you
apologise for after
”.
[49] The question
that arises then is whether Mr Walmsley’s dismissal was unfair.
There can be no doubt, as already indicated earlier,
that initially
the appellant had acted in a manner that was procedurally unfair in
deciding to retrench Mr Walmsley without there
having been any
consultation with either him or his union on his possible
retrenchment. However, the question that needs to be considered
is
what was the effect was of Mr Walmsley’s rejection of the job offer
from the appellant on the procedural unfairness that had
occurred up
to that point? This question is, in my view, highly relevant because,
had Mr Walmsley accepted that offer - which has
not been described as
unreasonable and which, it seems, he later regretted not having
taken, he would not have had any cause of action
to institute an
unfair dismissal claim. In my view the appellant’s offer had the
effect of removing or obliterating the procedural
unfairness which
had existed up to then. It is Mr Walmsley’s rejection of that offer
- which has not been shown to have been justified
- that caused Mr
Walmsley to be without a job.
[50] In
CWIU
v Johnson & Johnson (Pty) Ltd
(1997) BLLR 1186(LC)
the employer used selection criteria that were regarded by that Court
to be prima facie unfair but the union had failed to take up
an offer
by the employer which, in all probability, would have seen the
employees not being retrenched. At 1198G in that case the
Court said:
“Accordingly,
I am of the view that such causal link as otherwise would have
existed
between the use of this selection [criterion] and the retrenches’
dismissal
was broken by this novus interveniens and, in those circumstances, I
cannot find that the dismissal was rendered unfair
by reason of the
respondent’s use of this selection [criterion].”
[51] In its
judgement on appeal in that matter
(Johnson
& Johnson) (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC))
this Court referred to, among others, the dictum referred to above
with apparent approval although it relied on the dictum for its
decision to exercise its discretion against awarding compensation to
the employees. In par 50 this Court stated that that finding
“was
significant, for it illustrates in graphic terms the kind of
situation mentioned earlier, where the Labour Court or arbitrator
under the LRA might exercise its discretion in favour of not granting
the redress envisaged by s194(1), because the employee prevented
the
employer from remedying a defect in form and from giving the employee
redress earlier”.
[52] In
my view, where an employer offers an employee alternative employment
to avoid the employee’s retrenchment and the employee
rejects that
offer in circumstance where the offer cannot be said to have been an
unreasonable one or where the employee should have
accepted such
offer and he did not, the dismissal cannot be said to have been
unfair because in effect the employer effectively offered
to undo the
wrong it had done. I, accordingly, conclude that in this case Mr
Walmsley’s dismissal was not unfair in any respect
and his appeal
must also fail.
[53] In
the result I make the following order:-
The appeal is
dismissed.
The appellants are
ordered to pay the respondents’ costs jointly and severally, the
one paying the others to be absolved.
___________
DAVIS AJA
I
agree.
___________
ZONDO
JP
I
agree.
_________________
DU
PLESSIS AJA
Appearances:
For Appellant: Adv
Acker SC with Adv Wade
Instructed
by: Deneys Reitz Inc
For Respondent: Adv
Winchester
Instructed
by: Shepstone & Wylie
Date of Hearing: 4
September 2002
Date of Judgment: 11
December 2002