County Fair Foods (Pty) Ltd v OCGAWU and Another (CA11/01) [2003] ZALAC 8; [2003] 7 BLLR 647 (LAC) (23 May 2003)

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[2003] ZALAC 8
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County Fair Foods (Pty) Ltd v OCGAWU and Another (CA11/01) [2003] ZALAC 8; [2003] 7 BLLR 647 (LAC) (23 May 2003)

38
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG
HELD
IN JOHANNESBURG
Case No: CA11/01
In
the appeal between:
COUNTY FAIR
FOODS (PTY)LTD Appellant
and
OCGAWU
1
ST
Respondent
CLIVE
JONES 2
ND
Respondent
________________________________________________________________
JUDGEMENT
________________________________________________________________
ZONDO JP
Introduction
[1] This
is an appeal from a decision of the Labour Court in a dispute
between the appellant, on the one hand, and the respondents,
on the
other, on whether the appellant’s dismissal of the second
respondent was unfair and, if so, what relief was appropriate.
The
facts
[2] The
appellant is a producer of fresh and frozen chickens. It is based in
the Western Cape. Its chickens are bred, slaughtered
and processed in
the Western Cape but are distributed throughout South Africa and
Namibia. The appellant’s premises in the Western
Cape are at
Hocroft where it has an abattoir. It has a large production plant at
Epping – still within the Western Cape. The processing
of chickens
is conducted at the Epping facility. The Epping facility has two
operations, namely, the fresh food production plant
and an operation
referred to as the “
New Market Cold Store
”. The former
employs about 450 employees and the latter, 18. It would seem that
the New Market Cold Store facility is used for
the refrigeration of
both fresh and frozen chickens before their distribution.
[3] The
first respondent is a trade union of which the second respondent is a
member. The second respondent, Mr Clive Jones, was employed
by the
appellant in 1989 as a packer. In 1991 he was transferred to the
fresh produce department at New Market. There he was employed
as what
is known within the appellant’s operations as a “
new
order make-up
”.
In that capacity the second respondent was responsible for the
compilation of orders prior to dispatch.
[4]
In September 1999 the second respondent was promoted to the position
of a forklift driver in which he was required to operate
a forklift
in various parts of the cold store or to load trucks for delivery to
retailers. The appellant had five forklift drivers
including the
second respondent. There were three shifts which the forklift drivers
worked. These were the early shift which ran
from 06h30 to 16h15, the
day shift which ran from 07h30 to 17h15 and the late shift which was
from 10h30 to 20h30. The second respondent
worked the day shift only
whereas the other four forklift drivers alternated between the early
shift and the late shift every fortnight.
[5] In
December 1999 an employee who had been employed as head of one of
the departments in the cold store was dismissed. His dismissal
meant
that his position became vacant and somebody had to be appointed to
that position. The appellant filled that vacancy by promoting
one of
the forklift drivers to that position. This meant that there were now
four forklift drivers instead of five.
[6] On
the 9
th
December 1999 the appellant issued a document that it called
“Employee
Communique/brief”
.
For convenience I shall refer to such documents in this judgement
simply as memoranda. The appellant used to communicate with its
employees and their representatives in this manner. The heading of
the document of the 9
th
December was:
“Notice
of the Company’s intention to rationalize the New Market
Department.”
The document read thus:-
“
We
refer the (sic) Company’s on-going rationalization of the Company’s
operational and business activities in an ongoing endeavour
to try
and improve the Company’s competitive advantage and market share,
overhead costs structure, productivity, operational and
business
related efficiencies, resource utilization and profitability.
In
furtherance of the Company’s on-going rationalization, the Company
herewith gives notice of the Company’s intention and proposal
to
rationalize the Company’s New Market Department, with the view to
re-align the New Market Department’s operational activities
with
the Company’s other operational and business related activities,
with effect from 01 January 2000.
In
the light of the successful internal appointment of one of the
Company’s staggered shift Forklift Drivers to the position of
Departmental Head, the Company proposes to reduce the number of
Forklift Driver positions from five to four positions in future.
The
Company further proposes to transfer one of the Company’s current
day shift Forklift Drivers onto the Company’s staggered
shift
arrangement to fill the vacancy created by the recent Department Head
promotion.
The
Company accordingly invites our employees and their collective
bargaining representative, OCGAWU to consult with the Company
on the
Company’s rationalization proposal, as set out here above.
Should
any of our employees have any queries and/or proposals concerning the
contents of the employee communiqué/brief, please do
not hesitate to
contact your immediate superior in this regard.
We
trust that our employees will find the above in order and look
forward to meaningful consultations in this regard. Thank you.”
[7] It
will be seen from the memorandum that the appellant was proposing to
do away with the day shift. As that is the shift which
the second
respondent worked, the proposal affected him directly. In the
memorandum the appellant invited the employees as well as
the first
respondent to consult with it on its rationalisation proposal. The
memorandum was put on the notice board in the company
and was faxed
to the union. The appellant’s proposal entailed that the second
respondent would work like the other forklift drivers,
namely,
alternate between the early and late shifts. He refused to work on
that basis giving church commitments that he had in the
evenings as
the reason why he was not prepared to work the same shifts as the
other forklift drivers. The second respondent was prepared
to work
the early shift but not the late shift. The difficulty with this was
that the forklift driver who had been promoted and whose
position the
second respondent had to fill had worked on the basis of
alternating between the early and late shifts.
[8] From
the 5
th
to the 30
th
January 2000 certain of the appellant’s employees, including the
second respondent, participated in a strike. Apparently the appellant
also purported to lock the striking employees out during the strike.
The strike and lock-out came to an end on the 31
st
January 2000 when the second respondent returned to work. He was the
last one of the employees to return to work. During the
strike/lock-out
the appellant had operated with four forklift driver.
The other three forklift drivers had not participated in the strike.
The second
respondent’s position had been temporarily filled by a
casual employee who, unlike the second respondent, worked the same
shifts
as the other forklift drivers. The system of four forklift
drivers had worked efficiently. This was the system that the
appellant
had proposed before the strike.
[9] On
the second respondent’s return to work on the 31
st
January a discussion took place between Mr Coetzee, the second
respondent’s
immediate superior, and the second respondent. During this discussion
Mr Coetzee told the second respondent that he
expected him to fall
into the new shift system the next day. The second respondent replied
that he was not prepared to do so. According
to Mr Coetzee, he told
the second respondent that the latter would be retrenched if he did
not fall into the new shift system the
next day.
[10] A
meeting was held later on the same day which was attended by Mr
Coetzee, Mr Visser, who was the general manager of the appellant’s
operations, and the second respondent. In that meeting further
attempts were made to urge the second respondent to agree to work
the
new shift system but he continued to refuse. Mr Visser repeated to
the second respondent the rationale behind the reduction from
five to
four forklift drivers. He also told the second respondent that, if he
did not accept the staggered shift system, the alternative
that
remained was a retrenchment without any severance pay because the
appellant had offered him an alternative position.
[11] At
this stage of the events there is a conflict between Mr Visser’s
version and the second respondent’s version. On Mr Visser’s
version he and the second respondent reached an agreement that the
second respondent take a week off on full pay to go home and think
about the issue. On the second respondent’s version, Mr Visser
told the second respondent that the latter was suspended until
the
7
th
February which was a date scheduled for a meeting between the
appellant and the union to discuss organisational rights. The second
respondent’s version is the one to be preferred in this regard
because the appellant’s own memorandum of the 1
st
February supports his version unequivocally. In that memorandum the
appellant referred to the second respondent as having been suspended.
The material contents of that memorandum are quoted in paragraph 13
hereunder.
[12] On
the same day, namely the 31
st
January, the union sent a letter to the appellant. In that letter the
union alleged that threats had been made to the second respondent
on
that day to unilaterally change his working conditions and to
retrench him. It alleged that those threats were unlawful and urged
the appellant to refrain from carrying them out and to apologise to
the second respondent. The union also said that it remained open
for
consultation if the appellant wanted to consult it on a need to
change the second respondent’s working conditions.
[13] On
the 1
st
February 2000 the appellant issued another memorandum. The material
parts of that memorandum read thus:
“We
also refer to the Company’s various notices in this regard with
specific reference of (sic) Company’s New Market Cold Storage
Department and the introduction of a staggered shift practice, with
effect from 01 January, 2000, as part and parcel thereof.
We
refer to the OCGAWU letter dated 31 January 2000, concerning OCGAWU’s
objection to the Company’s alleged unilateral amendment
of the
terms and conditions of service of Clive Jones, one of the OCGAWU
Shop Stewards and his refusal to work in accordance with
the
Company’s new staggered shift practice.
Clive
Jones is the only employee in the Company’s New Market Colds (sic)
Storage Department, who has refused to work in accordance
with the
Company’s new staggered shift practice.
We
in the last instance refer to the provisions of the Labour Relations
Act, which allows(sic) an employer to retrench employees,
who
unreasonably refuse to accept an offer of alternative employment with
that employer, without the benefit of a severance package.
We
regret that in the light of the timeous notice of the Company’s
intention to rationalise the operational activities of the,
(sic)
Clive Jones’s refusal to work in accordance with the Company’s
new staggered shift
system,
the Company’s operational and business related requirements and in
the absence of meaningful, viable and/feasible (sic)
alternative to
the Company’s staggered shift rationalisation measures, the Company
has no real alternative but to formally retrench
him, with effect
from 01 February, 2000 and without the benefit of a severance
package.
In
an (sic) good faith endeavour to assist Clive Jones in finalising his
decision concerning his compliance with the Company’s
new staggered
shift practice the Company has decided to suspend Clive Jones with
full pay until the collective consultation meeting
between the
Company and OCGAWU at 10H00 on Monday, 07 February, 2000, concerning
the Company’s rationalisation intentions and
proposals.
The
Company will further not implement Clive Jones’s retrenchment,
subject to and conditional on the parties’ collective consultation
meeting, in accordance with the provisions of the Labour Relations
Act concerning the dismissal/retrenchment of Shop Stewards.
Clive
Jones’s services with the Company are therefore proposed to be
formally terminated on 29 February 2000.
The
Company however remains firmly committed to continue (sic) to (sic)
in good faith consult on the implementation of the Company’s
proposed rationalisation measures, inclusive of Clive Jones’s
formal retrenchment, even after the implementation thereof.”
[14] In
one paragraph of the memorandum the appellant said that, in the light
a number of matters which are set out therein, it had
“no
real alternative but to formally retrench
[the
second respondent] with effect from 01 February 2000 and without the
benefit of a
severance
package
”.
In another it proposed that the second respondent’s services be
formally terminated on the 29
th
February 2000. Indeed, in the last paragraph the appellant said that
it remained committed to continuing to consult in good faith
“on
the implementation of the [appellant’s] proposed rationalisation
measures inclusive of the second respondent’s formal retrenchment,
even after the implementation thereof.”
[15] A
meeting took place between the appellant and the union on the 7
th
February. At the meeting the union proposed that the second
respondent go back to the position of order make-up at a salary rate
lower than the salary he was earning at the time. That position was
on a lower grade than that of a forklift driver. The salary was
lower
as well. The appellant could not respond to this proposal immediately
but undertook to consider the proposal and revert to
the union. It
was anticipated that another meeting would be held at which the
matter would be discussed further.
[16] The
appellant only responded to the union’s proposal on the 16
th
February. It did so by way of another memorandum. The
heading
of the memorandum was:
“OCGAWU’s
employee bumping request.”
The rest of the contents of the document read thus:-
“
OCGAWU
proposed that the Company consider the employment of Clive Jones in
his previous Newmarket Order Make-up position, as a viable
and
feasible alternative to the Company’s proposed retrenchment.
Employees
on a higher job grade and wage rate, with suitable skills and longer
service, who have been earmarked for retrenchment,
may apply to be
demoted to a lower position and wage rate, where the encumbent (sic)
of that position has shorter service, subject
to and conditional on
the Company’s operational and business related requirements.
Where
the Company’s operational and business related requirements allow
for such demotion and bumping of a lower grade and paid
employee, the
lower grade and paid employee will be retrenched in favour of the
higher grade and paid employee.
In
the light of the above and after careful and due consideration of
OCGAWU’s request in this regard and the Company’s operational
and
business related requirements, the Company has decided to allow Clive
Jones the opportunity to be appointed in his previous position
as a
New Market Order Make-up and at the associated lower job grade and
wage rate, with effect from Thursday 17 February 2000.
Clive
Jones is accordingly required to report for work on Thursday, 17
February 2000 to commence to execute his normal duties and
responsibilities as a New Market Order Make-up.
The
Company will on a best endeavour basis try to accommodate the New
Market Order Make-up, with shorter service than Clive Jones
and who
Clive Jones will bump elsewhere in the Company, failing which the
Company will have no real alternative in the absence of
meaningful
viable and – or feasible alternative to the contrary, but (sic)
formally retrench the employee concerned, with effect
on 01 March
2000 and terminate his services on 31 March 2000.
[17] The
second respondent did not report for duty on the 17
th
February. It is not clear whether he learn’t of the contents of the
appellant’s memorandum of the 16
th
but decided not to report for duty or whether he was not aware of its
contents. The union wrote a letter to the appellant in response
to
the memorandum of the 16
th
.
In its letter the union accused the appellant of creating
“the
wrong impression that the union wants somebody from New Market Order
make-up to be retrenched to make place for [the second
respondent].”
It said that this was untrue. It then stated that the second
respondent would accept his old job back at the lower grade and rate
“
but
not at the expense of another employee
.”
It urged the appellant
“to
look again at the situation with the concern (sic) in mind and revert
back (sic) to the union.”
It also asked whether somebody could not be trained
“from
New Order Make-up to drive [the second respondent’s hyster]”.
The last sentence of the letter was to the effect that the union’s
“
above
comments
”
were without prejudice
“to
our pursuance (sic) of
the
matter through the CCMA, however, we hope an amicable settlement is
possible.”
[18] The
appellant replied to the union’s letter by way of a memorandum
dated the 23
rd
February 2000. In the memorandum the appellant stated that it had
agreed to a proposal that had been made by the union to appoint
the
second respondent in the New Market Order Make-up position but the
union had, by its letter of the 17
th
February, changed its mind on this. The appellant stated that it had
agreed to appoint the second respondent with effect from the
17
th
February. It said that the second respondent and the union
“do
not want [the second respondent’s] appointment to his previous
positing (sic), where his appointment would necessitate the
retrenchment of the employee currently employed in that position”.
[19] The
appellant then stated that the second respondent had accordingly
“not
accepted the [appellant’s] offer of employment and has not reported
for work on Thursday 17 February 2000 or thereafter,
with the (sic)
view to execute the duties and responsibilities associated with his
previous position.”
The last four paragraphs of the memorandum read thus:-
“The
[appellant] has undertaken to try and accommodate the employee, who
is currently employed in [the second respondent’s] previous
position, elsewhere within the [appellant], failing which, the
[appellant] would have no real alternative, but (sic) formally
retrench
that employee with effect from 01 March 2000.
In
the light of the above and in the absence of any meaningful, viable
and/or feasible alternatives to the contrary, the [appellant]
has no
real alternative, but to confirm [the second respondent’s]
retrenchment with effect on (sic) 01 February, 2000.
[The
second respondent’s] services with the [appellant] will accordingly
be formally terminated on 29
th
February, 2000.
The
[appellant] accordingly invites our employees and their collective
bargaining representative, OCGAWU, to consult with the [appellant]
on
the [appellant’s] rationalization measures, inclusive of [the
second respondent’s] proposed retrenchment.”
[19] On
the 24
th
February the union responded to the appellant’s memorandum of the
23
rd
.
It said that the second respondent would report for work on the 28
th
February 2000 but that this did not mean that the union or the second
respondent
“accepts
the retrenchment of another employee.”
In the letter the union also expressed the hope that the appellant
would manage to place the employee who occupied the second
respondent’s
previous position elsewhere. It concluded the letter
by proposing a meeting between itself, the appellant, the second
respondent
and the employee concerned on 29 February 2000 at 14h00.
That was going to be on the second day of work after the second
respondent’s
return to work on the 28
th
February if the appellant accepted the union’s proposal.
[20] The
appellant did not respond to the union’s letter of the 24
th
February prior to the 28
th
February. On the 28
th
February the appellant issued a memorandum as a response to the
union’s letter. In the memorandum the appellant did not accept
the
union’s proposal for a meeting to be held on that day. The
memorandum read thus:-
“We
refer to the OCGAWU letter, dated 24 February, 2000, concerning
OCGAWU’s notice that OCGAWU and Clive Jones have conditionally
accepted the Company’s offer of employment and that Clive Jones
would be reporting to work on Monday, 28 February, 2000, with the
view to execute his previous duties and services as the NMCS Order
make up worker.
A
material term and condition of the Company’s offer of employment to
Clive Jones was that Clive Jones had to report for work
on Thursday,
17 February, 2000, which he has failed and/or refused to do.
In
the light of the above, the Company’s commitment to try to
accommodate the current incumbent of Clive Jones’ position
elsewhere
within the Company and the Company’s commitment to
continue with employee consultations, collective and otherwise, the
Company
is of the opinion that OCGAWU’s original objection to the
Company’s employment offer, Clive Jones’ failure and/or refusal
to
timeously report for work and Clive Jones’ and OCGAWU’s
current, belated and conditional acceptance of the Company’s
employment
offer, are unreasonable and unacceptable to (sic) the
extreme.
The
Company’s view is that Clive Jones nor (sic) OCGAWU has timeously
accepted the Company’s offer of employment and the Company
cannot
be reasonably expected to condone the belated acceptance thereof a
calendar week after the event on a conditional basis.
The
Company’s employment offer was not at the time open for a
conditional acceptance.
Despite
the fact that OCGAWU and Clive Jones have ostensibly accepted the
Company’s employment offer, OCGAWU is in bad faith still
keeping
their and Clive Jones’ options open by pursuing OCGAWU’s CCMA
dispute in this regard.
In
the light of the above and in the absence of any meaningful, viable
and/or feasible alternatives to the contrary the Company has
no real
alternative, but to once again confirm Clive Jones’ retrenchment
with effect on (sic) 01 February, 2000.
Clive
Jones will therefore not be allowed to report for work on Monday, 28
February, 2000 and his services with the Company will
be formally
terminated on 29 February, 2000.
The
Company once again invites our employees and their collective
bargaining representative, OCGAWU, to consult with the Company
on the
Company’s rationalization measures, inclusive of Clive Jones’
retrenchment.”
[21] It
will be seen from the appellant’s memorandum of the 28
th
February that:-
the
appellant complained that the union and the second respondent had
provided a conditional acceptance of its offer when its offer
had
not been open for a conditional acceptance;
in
terms of the appellant’s offer to the union and the second
respondent, the second respondent was supposed to report for work
on
the 17
th
February but he had failed to do so;
(c) the
appellant was not prepared to accept a belated acceptance of the
offer;
there
were no viable alternatives to the second respondent’s
retrenchment “but to once again confirm the [second respondent’s]
retrenchment with effect from 01 February, 2000;
the
second respondent would not be allowed to report for work on Monday
28 February 2000 and his services with the appellant would
be
formally terminated on 29 February 2000.
[22] In
accordance with the contents of the union’s letter of the 24
th
February the second respondent presented himself at the appellant’s
gate on the morning of the 28
th
February. He was refused entry into the premises and was given the
appellant’s
memorandum
of the 28
th
February. The second respondent’s last day in the appellant’s
employment was the 29
th
February.
Proceedings
in the Labour Court
[23] A
dispute then arose between the appellant, on the one hand, and, the
union and the second respondent, on the other, on the
fairness of
the dismissal. In due course the dispute was referred to the Labour
Court for adjudication. The matter came before Gamble
AJ. Gamble AJ,
after hearing evidence and arguments, delivered a judgement to the
effect that the second respondent’s dismissal
was both
substantively and procedurally unfair. He ordered that the second
respondent “
be
reinstated with immediate effect in the position that he held on 31
January 2000 on the same terms and conditions of employment
that
prevailed at the time, with retrospective effect as from the date of
dismissal”
,
that the second respondent repay the value of the retrenchment
package received from the appellant or alternatively that the
appellant
could set the value of the package off against the
back-pay. He ordered the appellant to pay the first and second
respondents’
costs. Subsequently he granted the appellant leave to
appeal to this Court.
The
appeal
[24] On
appeal the appellant challenged the Court a quo’s finding that the
dismissal was both substantively and procedurally unfair
as well as
the order that the second respondent be reinstated and, that the
reinstatement be to the position which the second respondent
occupied
as at 31 January 2000 which was that of a forklift driver. I propose
to deal first with the finding of substantive fairness.
[25] The
Court a quo acknowledged, quite correctly in my judgement, that the
appellant had an acceptable reason for its decision to
reduce the
forklift drivers from five to four. It also held that the second
respondent’s dismissal was not effected for the reason
of
implementing the system of four forklift drivers. It said that as of
31 January 2000 the proximate cause for the second respondent’s
dismissal was his refusal to go on to the staggered shift.
[26] It
seems from the judgement of the Court a quo that the appellant’s
Counsel argued the matter in the Court a quo on the basis
that the
appellant’s decision to dismiss the second respondent was taken on
the 23
rd
February. With that argument in mind, the Court a quo said that the
reason for the second respondent’s dismissal given in the
appellant’s
memorandum of the 23
rd
February is that “
(t)he
company has no real alternative, but to confirm [the second
respondent’s] retrenchment with effect on (sic) 01 February 2000.”
The Court a quo went on to say that, if regard is had to the
appellant’s memorandum of the 28
th
February, the reason given for the second respondent’s dismissal
was
“[the
second respondent’s] failure and/or refusal to timeously report for
work and [his] current, belated and conditional acceptance
of
the [appellant’s] employment offer …”
The
Court a quo then concluded that that reason for dismissal did not
bring the second respondent’s dismissal within the ambit
of a
dismissal for operational requirements and that, therefore, the
appellant had failed to establish a fair reason for the second
respondent’s dismissal.
[27] I
cannot fault the Court a quo’s conclusion that the appellant failed
to establish a fair reason for the second respondent’s
dismissal.
In terms of the Act once it has been established that a dismissal
occurred, the employer bears the onus to prove that
there was a fair
reason for the dismissal. If the employer relies on operational
requirements to show the existence of a fair reason
to dismiss, he
must show that the dismissal of the employee could not be avoided.
That is why both the employer and the employee
or his representatives
are required by sec 189 of the Act to explore the possibilities of
avoiding the employee’s dismissal.
[28]
In this case, the union and the second respondent made a proposal to
the appellant that the latter be demoted to a position
he had held
before he was promoted to the position of a forklift driver. That was
the position of an “
order
make-up
.”
It entailed that the second respondent would be downgraded and that
he would take a cut in his salary. Obviously the union and
the second
respondent made this proposal in order to avoid the second
respondent’s dismissal. The appellant found the proposal
acceptable
and conveyed its acceptance thereof to the union by way of its
memorandum of the 16
th
February. If the appellant’s acceptance of the union’s proposal
is proof of anything, it is proof of the fact that the appellant’s
operational requirements could accommodate the second respondent’s
continued employment by the appellant. The appellant’s operational
requirements did not dictate that he should be dismissed.
[29] Once
it is accepted that as at the 16-17
th
February the appellant’s operational requirements could not be
relied upon as a fair reason for the second respondent’s dismissal,
the appellant has to show what operational requirements emerged
thereafter which justified the second respondent’s dismissal. There
is no doubt that, after the second respondent did not report for work
on the 17
th
February as required in the appellant’s memorandum of the 16
th
February, the appellant used that as the reason to justify
retrenching him. That can be gathered from the appellant’s
memorandum
of the 23
rd
February as well as that of the 28
th
February. In the latter memorandum the appellant said how
unacceptable it was to it that the union’s response was, as
far
as the appellant was concerned, a conditional acceptance and that the
second respondent had failed to report for work on the
17
th
February but had only accepted the appellant’s offer a week later.
The appellant said that it could not reasonably be expected
“to
condone the belated acceptance of its offer a calendar week after the
event on a conditional basis.”
It then said that the “
[second
respondent] will therefore not be allowed to report for work on
Monday 28 February, and his services with the [appellant]
will be
formally terminated on 29 February 2000.”
[30] The
appellant took more than a week to consider the union’s proposal
that the second respondent be demoted to the position
of an order
make-up. The appellant has not proffered any reason why it was so
critical that the second respondent report for duty
on the 17
th
February. A week after the 17
th
February – that is on the 23
rd
February – the union had sent the appellant a letter which the
appellant itself regarded as an acceptance of its “
offer
”.
It is not necessary to consider whether the appellant’s memorandum
of the 16
th
February contained the appellant’s offer to the union and the
second respondent to demote the latter to the position of order
make-up
or whether it contained an acceptance by the appellant of an
offer that had been made by the union and the second respondent. For
present purposes this is of no consequence. The fact of the matter is
that by the 17
th
February the appellant’s operational requirements could accommodate
the second respondent’s continued employment by the appellant
and
this was acceptable to all parties.
[31] Both
parties seemed to have been confused by how the incumbent of the
position that the second respondent was going to take would
be dealt
with. First, the union seems to have read the appellant’s
memorandum of the 16
th
February as suggesting that the union had proposed another employee’s
dismissal to make way for the second respondent. Then the
appellant
thought that the union was not prepared to let the second respondent
take up his old position if this could lead to another
employee being
dismissed.
[32] The
position is that the union’s proposal that the second respondent be
demoted to his previous position meant by its very
nature that the
employee who occupied that position at the time would have to leave
that position to make way for the second respondent.
Once he had left
that position, unless another position could be found where he could
be accommodated, he would have to be dismissed
for operational
requirements. That was the necessary implication of the proposal and
the union must have known it when it made the
proposal because they
knew that another employee occupied that position. Otherwise, what
did they think would happen to that employee
if he could not be
accommodated within the appellant?
[33] The
appellant’s memorandum of the 16
th
February was simply conveying what was obvious from the union’s
proposal. The union’s statement in its letter of the 17
th
February that the second respondent would not take up his old
position if this meant that another employee would lose his job made
no sense, especially because the appellant had made it clear in its
memorandum of the 16
th
February that it would do its best to try and accommodate the said
employee but could not give any guarantee. If the matter had ended
at
this stage and the Court was called upon to decide whether there was
a fair reason for the second respondent’s dismissal, I
would have
had great difficulty in concluding that there was no fair reason for
the dismissal of the second respondent because it
would have been
shown that the appellant had a legitimate reason to do away with the
day shift and, the second respondent would have
rejected a reasonable
alternative for no sound reason. That is, however, not where the
matter ended before it was taken to court.
[34] After
stating in effect that it found the second respondent’s failure to
report for duty on the 17
th
February and the union’s conditional acceptance of its offer
unacceptable, the appellant invited the union and the second
respondent
in the last paragraph of its memorandum of the 23
rd
February
“to
consult with the [it] on the [its] rationalisation measures inclusive
of [the second respondent’s] retrenchment.”
The union took advantage of this invitation. In its letter of the
24
th
February it said that the second respondent would report for duty on
the 28
th
February. It further said that this did not mean that the union and
the
“second
respondent accepted’ the retrenchment of another employee”
and expressed the hope that
“the
[appellant] manages to place the other employee in other (sic)
position.”
It
also proposed a meeting for the 29
th
February.
[35]
It is clear from the union’s letter of the 24
th
that the union was no longer taking the stance it had taken in its
letter of the 17
th
February that the second respondent would not accept his old job at
the expense of another employee. The union would have been entitled
to reserve its rights with regard to any subsequent dismissal of
another employee and to challenge the fairness thereof if it felt
aggrieved. It did not have to agree in advance not to challenge any
subsequent dismissal even if it felt that such dismissal was
unfair
for any reason other than that it arose from a “
bumping
exercise
”.
Once the appellant had invited the union and the second respondent in
its memorandum of the 23
rd
to further consultation, the union was entitled to make a proposal –
which it made in its letter of the 24
th
- that the second respondent report for duty on the 28
th
.
[36]
Although the union did not expressly state in its letter of the 24
th
that the second respondent’s reporting for duty on the 28
th
would be pursuant to its proposal of the 7
th
February and the appellant’s response thereto of the 16
th
February, it is crystal clear that it was. Indeed, the appellant also
understood it that way. This is clear from its memorandum of
the
28
th
.
There it referred to the union’s letter of the 24
th
as the acceptance of its offer. Since the appellant had found the
idea that the second respondent take up the position of an order
make-up acceptable only a week before, the onus was on it to show why
that idea was no longer acceptable a week later. The appellant
failed
dismally to show this. There is no doubt that the second respondent
could have been accommodated in the position of an order
make-up. In
the light of this I have no hesitation in concluding that no fair
reason was shown for the second respondent’s dismissal.
Accordingly, the dismissal was substantively unfair.
[37] In
the light of my conclusion that the dismissal was substantively
unfair, I think it would serve no useful purpose to consider
whether
it was also procedurally unfair. Whatever I can find on that issue
will have no practical effect on either party. It will
not affect the
relief in any way nor will it affect costs.
[38] The
next question is the issue of relief. The Court a quo made an order
that the second respondent be reinstated as a forklift
driver as well
as an order for the payment of compensation. The appellant contended
that the order of reinstatement should not have
been granted. I do
not think that the Court a quo should have ordered that the appellant
reinstate the second respondent in the position
of a forklift driver
as it did. The appellant had a legitimate and acceptable reason for
wanting to do away with the day shift which
the second respondent
worked. That much was acknowledged by the Court a quo. The second
respondent had made it clear over a long
period that he was not
prepared to work the staggered shift due to his church commitments in
the evenings.
[39] The
aforegoing does not, however, mean that no order would be appropriate
which would ensure that the second respondent is taken
back into the
appellant’s employment. I think that fairness requires that, if at
all possible, the order that is granted should
be one that will
ensure precisely that. The position to which he should be taken back
is the one of an order make-up. He should retain
his service but his
salary and other terms and conditions of employment should be those
applicable to an employee employed as an
order make-up. He had
already indicated that he was agreeable to taking up that position
together with the grade and wage rate applicable
to it. There is also
no reason why the appellant should not be ordered to in effect pay
the second respondent the salary that he
would have been paid in the
position of an order make-up had he not been dismissed. He tendered
his services on the 28
th
February and the appellant rejected this. Accordingly, I propose to
make an order that will have this effect. It is hoped that the
appellant will do its best to try and accommodate the other employee
elsewhere within the company but, of course, the appellant may
end up
having to dismiss the present incumbent of the position that the
second respondent will take up. Provided there is a fair
reason to do
this and a fair procedure is followed, the dismissal will be fair.
[40] In
conclusion the above means that the appeal succeeds in part and fails
in part. I think the partial success of the appellant
is so
negligible that it should not affect the issue of costs. The
respondents have, without any doubt, achieved substantial success
and
should be awarded their costs.
[41] In
the result I make the following order:-
1. Subject
to (2) and (3) below, the appeal is dismissed with costs.
The
appeal against the order of the Court a quo that the position to
which the second respondent was reinstated is the position
he held
as at 31 January 2000 is hereby upheld.
The
order contained in paragraph 123.2 of the judgement of the Court a
quo is set aside and is replaced by the following order:-
“
The
respondent is ordered to:
take
the second applicant back in its employ in the position of an order
make-up on terms and conditions of employment applicable
to that
position.
(b) pay
the second applicant an amount equal to the salary that he would have
been paid as an order make-up for the period from the
28
th
February 2000 to date had he not been dismissed.
(c) treat
the second applicant on the basis that his service period was not
interrupted by his dismissal.”
Zondo
JP
I
agree.
Hlophe
AJA
I agree
Du Plessis AJA
Appearances:
For
the appellant: Mr M.W. Janisch
Instructed
by: Cliff Dekker Fuller Moore INC
For
the respondent: Mr L.J. Krige
Instructed
by: Rabkin-Nicker & Williams Attorneys
Date
of judgement: 23 May 2003
Date of hearing: 25 September 2002