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[2006] ZALAC 7
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Arthur Kaplan Jewellery (Pty) Ltd v van de Venter (JA 54/03) [2006] ZALAC 7 (21 February 2006)
IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG).
Case No.
JA 54/03
In the matter between
ARTHUR KAPLAN
JEWELLERS (PTY) LTD Appellant
And
MARIET VAN DEVENTER
Respondent
JUDGMENT:
DAVIS
AJA:
Introduction.
[1] Respondent commenced employment with appellant on 17 April 1996.
She was promoted to the position of manager of appellant’s
training and development department with effect from 1 May 1999.
[2] Due to excessive financial losses suffered by appellant’s
holding company, Retail Apparel (Pty) Ltd (‘RAG’),
the
need arose for the companies in the RAG group to consider possible
retrenchments in a number of RAG’s subsidiaries.
[3] In particular, RAG sought to address a problem which essentially
amounted to a duplication of departments between RAG and appellant.
The management of appellant decided to act proactively. They
determined to close down various departments, including the staff
training department, the department in which respondent was
employed.
[4] When it became apparent that the training department was to be
closed down and that retrenchment had become an imminent possibility,
various alternative positions were offered to respondent. These
alternative positions were rejected by respondent. Respondent was
finally retrenched on 31 October 2000.
[5] Pursuant to her retrenchment, respondent declared a dispute
related to her alleged unfair retrenchment and referred this dispute
to the Commission for Conciliation, Mediation and Arbitration
(‘CCMA’).
[6] On 15 February 2001 a commissioner of the CCMA issued a
certificate of outcome in terms of which it was confirmed that the
dispute between the parties had not been resolved.
[7] Respondent referred the dispute to the Labour Court on 20 April
2001, claiming that her dismissal was procedurally unfair.
Respondent did not dispute the substantive fairness of her dismissal.
[8] The Labour Court, per
Zilwa AJ,
found against appellant,
holding that the dismissal of respondent was procedurally unfair.
The learned Acting Judge ordered appellant
to pay respondent an
amount of R155 706,00, being an amount of twelve months compensation,
together with costs.
[9] With the leave of the Court
a quo,
the appellant appeals
to this Court against that order. Respondent initially sought to
oppose the appeal but subsequently withdrew
her opposition.
The decision to retrench.
[10] On 19 September 2000, Mr Young, the operations executive of
appellant, informed a number of employees, including respondent,
that
the staff training department would be closed down with effect from
31 October 2000. There was no consultation between appellant
and the affected employees in respect of this decision. In short,
there was a clear absence of any consultation process envisaged
in
terms of section 189 of the Labour Relations Act 66 of 1995 (‘LRA’),
whereby appellant sought to achieve a consensus
regarding the fate of
the training department.
[11] Appellant’s failure to so consult is not, however,
determinative of the dispute. The key issue concerns appellant’s
subsequent conduct. As
Zondo AJ
(as he then was) said in
CWIU
v Johnson & Johnson (Pty) Ltd
[1997] 9 BLR 1186
(LC) at 1198
e – h: ‘In other words although the selection criteria
was
prima facie
unfair in that it was not assumed that the
female workers could not do those jobs which male workers with lesser
service periods
than themselves were doing (and this assumption was
made without (prior to the 3 December 1996) the female workers being
given
a chance to try the jobs), the ultimate reason why the female
workers ended up out of the company is not that this discriminatory
selection criteria was used in this retrenchment but that they, for
reasons they and the applicant have elected not to explain
both to
the respondent and to the Court, chose not to take up the opportunity
to say to the respondent they wanted the jobs it
regarded as
male-type jobs and were willing to show that they could do them when
the respondent quite clearly exhibited an attitude
that it was
prepared to consider them for such jobs if they wanted them.
Accordingly, I am of the view that such causal link as
otherwise
would have existed between the use of this selection criteria and the
retrenchee’s 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 criteria’. This approach was approved by this court
in
Johnson & Johnson (Pty) Ltd
v
CWIU (
1999) 20
ILJ 88(LAC) at para 50.
[12] In this case, the same enquiry is required namely: did the
conduct of appellant, subsequent to the decision to close down
the
staff training department, comply with its obligation in terms of
section 189 of the LRA and, flowing from this enquiry was
it, in
effect, respondent’s conduct that led to her retrenchment.
[13] There was a considerable amount of uncontested evidence that
appellant offered respondent a number of opportunities within
its
organisation. On 10 October 2000 Ms Luette Robertson, a member of
the appellant’s human resource department, wrote to
respondent
thus:
‘Dear Mariet
I would hereby like to confirm the vacancies that exist within the
company. You must feel free to apply for any of these positions
should you wish to do so. The vacancies are as follows:
Manager - Monte Casino in Fourways (Johannesburg)
21C - Monte Casino
Sales Assistant - Monte Casino
Manager - Rustenburg Waterfall Mall
Manager - Mar A Pula (JLB International Airport)
Manager - Cresta (Johannesburg)
Counter Manager - V & A Waterfront (Cape Town)
Sales Assistant - Sammy Marks Square
You will be kept informed of all vacancies within Arthur Kaplan
Jewellers as well as at RAG.’
[14] On 11 October 2001 respondent replied to Mr Young as follows:
‘I would hereby like to acknowledge receipt of the vacancy
list, given to me on the 10.10.2000.
On the latest vacancy list there are three reasonably acceptable
management positions:
Monte Casino, Mar A Pula, Cresta available.
Unfortunately I won’t apply for any of these positions due to a
number of reasons:
I reside in Pretoria
My baby needs to be dropped off & picked up for crèche
daily
The crèche is closed over weekends
Will not be able to work every weekend
Will not be able to work extended trading hours
Will not be able to do extensive traveling.
I herewith request the Management of Arthur Kaplan Jewellers to
indicate what other positions with the Company you can offer me.’
[15] Under cross examination, respondent explained that the three
acceptable alternative positions would have resulted in longer
working hours. When it was put to respondent that she would not be
required to work every Saturday and in addition to that, appellant
utilized a shift system ‘so even on Saturdays when you had to
work maybe every second Saturday, you might only have to work
a shift
that might relate to working half day, up to 13:00 in the afternoon’,
she was unable to provide any evidence which
indicated that these
working hours would indeed be longer than those which she was
required to complete in the staff training
department.
[16] Respondent sought to raise a problem that the acceptance of an
alternative position would necessarily lead to a loss of benefits.
However, Mr Young’s uncontested testimony indicated that
respondent’s remuneration might not be affected at all and
indeed it may well have been beneficial to her should she have
accepted one of the alternatives offered.
[17] In summary, the evidence shows that appellant engaged in a
consultation process with respondent as to where the latter
might be
deployed in its organization. She was offered the possibility of six
different posts within the organization, three of
which, on her own
admission, were realistic alternatives. Contrary to the reasons
which she offered for rejecting the three posts
in her letter of 11
October 2000, the evidence revealed that she had worked every
Saturday in the position of training manager
prior to this position
being made redundant. There is uncontested evidence of Mr Young
that the positions that were offered to
respondent would not have
entailed extensive traveling or more week-end work than that which
she had undertaken in her previous
position. In short the reasons
raised by her for rejecting the three alternatives failed the
scrutiny of the uncontested evidence.
[18] In my view, the evidence is compelling that the alternatives
which were proposed to respondent were reasonable and that she
did
not provide sufficient justification as to the reasons for refusing
to accept one of these alternative positions. Accordingly,
appellant
acted neither substantively nor procedurally unfairly in the manner
in which respondent was ultimately retrenched. On
these facts it is
therefore clear that even though the appellant may have acted
unfairly in not consulting respondent about the
closing down of the
training department, such unfairness did not lead to her losing
employment with appellant. She lost employment
with appellant because
she failed, without any justification, to accept one of the jobs
offered to her by appellant and for that,
she only has herself to
blame.
[19] For these reasons, the appeal succeeds and the order of
Zilwa
AJ
is set aside. It is replaced with the following order: ‘The
dismissal of the applicant is declared to be procedurally fair’.
______________
DAVIS AJA
I
agree
_____________
ZONDO JP
I
agree
____________
NKABINDE AJA
Appearances
For
the appellant : Adv D. De Bruin
Instructed
by : Ludik & Booysen Attorneys
For
the respondent : Adv B Roode
Instructed
by : Justin Dorkin Attorneys
Date
of judgment : 21 February 2006