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[2007] ZALAC 29
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Pride Milling Company (Pty) Ltd v Velthuis (JA 17/04) [2007] ZALAC 29 (15 June 2007)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case No. : JA 17/04
In
the matter between:
PRIDE
MILLING COMPANY (PTY) LTD
Appellant
and
KAREN
VELTHUIS
Respondent
_____________________________________________________
JUDGMENT
H.M. MUSI, AJA
INTRODUCTION:
[1] This is an appeal
against a judgment of the Labour Court delivered on 6 October 2003 in
terms of which Landman J, found that
the dismissal of the respondent
(the applicant in the court
a quo
) by the appellant (the
respondent in the court
a quo
) was unfair and granted an order
in favour of the respondent for compensation in the amount of R182
595,00 plus costs of suit.
The appeal is with the leave of this
Court. Before considering the issues raised in the appeal, it is
necessary to set out the
factual background to the dispute.
FACTUAL BACKGROUND:
[2] The appellant
(hereinafter referred to as “the company”) is a company
with limited liability duly incorporated in
accordance with the
company laws of the Republic of South Africa with its principal place
of business in Centurion, Pretoria.
The company’s core
business is the manufacturing, marketing, sale and supply of maize
products. On 2 August 2001 the company
took into its employ Ms Karen
Velthuis (“the respondent”). Her job title is given as
Spar Channel Manager which entailed,
in particular, the servicing of
two Spar retail outlets in the Gauteng region. She had sales
representatives under her control,
who did the actual selling of the
company’s products. She had been recruited specifically because
of her previous connection
with the Spar retailers.
[3] The respondent
initially reported to the General Manager of the company’s mill
at Nigel, Mr Chris Schreuder (“Schreuder”),
whose
assistant was Mr Marx (“Marx”), the respondent’s
immediate superior. During January 2002 the respondent
was called to
meetings with these two gentlemen. She first met Marx on 28 January
2002 and subsequently Schreuder on 30 January
2002. In these
meetings she was informed of the changes in the reporting lines, that
she was no longer to report to the Nigel
mill but rather to Mr. Nico
van der Merwe, the Sales and Marketing Director of the company who
was based at the head office in
Centurion.
[4] In the meantime, the
company had interviewed Ms Marie Greeff and on 4 February 2002 she
was appointed to the position of National
Marketing Manager. Soon
thereafter the company issued a letter dated 8 February 2002 which
served as a notice in terms of section
189(3) of the Labour Relations
Act No. 66 of 1995 (“the Act”), which initiated a process
of consultation at the end
of which the respondent’s position
was declared redundant, which in turn led to her retrenchment on 30
April 2002.
[5] The notice in terms
of section 189 reads as follows in part:
“
Further to your discussion with
Mr Marx on the 28/01/2002 and with C Schreuder on the 29/01/2002 the
company hereby gives notice
in considering changes to the current
work methods and utilization of staff at Pride Milling, which might
affect your position.
Management thus intends to proceed
with the process of consultation with yourselves and other role
players about matters raised
hereunder.
THE REASON FOR THE PROPOSED
RESTRUCTERING
Due to changes in the current market
conditions and the emphasis the company is placing on marketing as an
operational mechanism
to increase its market share the company has
been forced into a situation to investigate alternative, more
effective and more efficient
business methods in line with this
strategic repositioning.
It was for that reason that the
company appointed a Trade Marketing Manager with the responsibility
to expand the function into
the various elements of sales and
marketing. Subsequent to this it has become evident that we need to
make further rationalizations
to further enhance the efficiencies in
the sales and marketing department.
As part of these rationalizations we
propose to incorporate the Channel Manager – Spar position into
the Trade Marketing Manager’s
position. This proposed
rationalization will affect your current position and the purpose of
this letter is to inform you of
these changes and the fact that your
position could become redundant should the changes be implemented and
to furthermore enter
into consultations with you regarding these
changes and the issues mentioned below.”
[6] Paragraph 2 of the
notice deals with alternatives to dismissal and lists the options
available in this regard. Paragraph 3
deals with the number of
positions to be affected and states that only one position in the
marketing section (that of the respondent)
would be affected.
Paragraphs 4, 5 and 6 deal respectively with severance pay, future
employment and the time schedules. The
latter paragraph states:
“
It is envisaged that the
implementation of a new structure will be completed by the end of
February 2002. It is therefore of the
utmost importance that the
Company and the respective role players continue with a process of
consultation as soon as possible.”
[7] It is convenient at
this stage to refer to the evidence regarding the meetings that the
respondent had with Messrs. Marx and
Schreuder as reflected in the
opening paragraph of the notice. Marx testified that he had called
the respondent to his office
on 28 January 2002 to inform her that
she would no longer be reporting to him at the Nigel Mill but rather
to Mr. Nico van der
Merwe (Van der Merwe) at head office. He said
that this change in the reporting lines not only affected the
respondent but also
other managers who had been reporting directly to
him. In her evidence, the respondent said that subsequent to this
meeting Marx
phoned and informed her that she was going to lose her
Spar channel but that her salary would not be affected and that she
should
contact Schreuder for further details. Marx denied this under
cross-examination and maintained that the only restructuring that
he
discussed with the respondent related to the change in the reporting
lines. He said that he had not known the details of how
this would
work and had told the respondent to see Van der Merwe in this regard.
[8] Following the above
meeting, the respondent went to see Schreuder on 30 January 2002
(there was some confusion as to the correct
date, whether it was the
29
th
or 30
th
).
The respondent testified that she had referred Schreuder to an
organogram of the company and inquired from Schreuder where she
fitted, presumably in view of what Marx had allegedly told her
telephonically. She said that Schreuder would not give her a direct
answer and instead referred her to Van der Merwe. In his evidence,
Schreuder did not dispute this, but insisted that only the
reporting
structure had changed at that stage and that is what he had
communicated to the respondent. He said that how the system
would
work, he did not know and that is why he referred the respondent to
Van der Merwe.
[9] It was common cause
that the respondent was not in a position to consult on the 8
th
February 2002 as she was taken by surprise by the contents of the
notice and had become very emotional. Van der Merwe simply went
through the letter with her in the presence of Schreuder. Another
meeting was then scheduled for the 14
th
February 2002. On the eve of this meeting the respondent addressed a
letter to the appellant. This letter reads in part:
“I hereby
place on record the following:-
1. Notice regarding retrenchment was
only provided to myself and no other employees of the company. As
only one employee is to
be affected, it is clear that your decision
has already been made that I am the person to be retrenched.
Therefore any discussions
in this regard would be worthless due to
your predecission in this matter.
2. As another person has already been
employed on 4 February 2002 to take over my position, it is clear
that there is no financial
necessity leading up to the proposed
retrenchments.
3. In my opinion you are attempting to
abuse the retrenchment process in order to remove me from your
company where no legal reason
exists for my dismissal.
4. The entire process initiated by
yourselves is both substantively and procedually unfair, and I hereby
note my objection to your
letter of 8 February 2002.02.13.”
[10] Nonetheless the
meeting did take place on the 14
th
as scheduled. In his
evidence in chief, Van der Merwe was not sure whether any proposals
were discussed, but under cross-examination
he conceded that the
respondent had made one proposal. It was that instead of
incorporating her Spar channel into Marie Greeff’s
portfolio,
Marie Greef should be given the Massmart channel, so that she could
retain her position. Massmart is apparently a bulk
supplier of goods
that was based in Durban. The person handling this channel would
also handle the business relating to other
bulk suppliers like Macro,
Browns and Metro Cash and Carry under the overall supervision of Mr
Hennie van Rensburg who was based
in Pietermaritzburg. On the
versions of both parties, the Massmart proposal was the only one
discussed at this meeting. Van der
Merwe turned it down and said
that someone had already been interviewed for that position and was
due to start in due course.
The subsequent evidence reveals that the
person was Mr Gert de Bruin and that he took up the position on the
1
st
March 2002.
[11] Subsequent to the
above meeting, the appellant addressed a letter to the respondent in
response to the letter that the respondent
had addressed to it on 13
February 2002. This letter reads in part:
“
Although we note the contents
thereof we wish to clarify the following matters:
1. your notice is headed “Notice
of Retrenchment”. This is incorrect as our notice clearly
states that it is a notification
of a proposed restructure and not of
retrenchment.
2. as the proposed restructure relates
to your department we have an obligation to inform you of such
proposed changes that could
affected (sic) your position. Should
anybody else be affected by this restructure, after we have engaged
into consultation with
yourself, such employee/employees will be
informed likewise.
3. we deny the fact that a decision
has already been taken regarding the redundancy of your position and
possible retrenchments.
4. we acknowledge that a new person
has been appointed as Marketing Manager. On the question whether or
not there is a financial
necessity for the proposed restructure it
will be up to the Company to substantiate such reason during the
consultation process;”
The appellant goes on to
deny that they were abusing the retrenchment process or that they
were acting unfairly. The letter concludes
as follows:
“
the company again wishes to
stress that it is willing to consult on the issues raised in our
letter dated 8
th
February 2002 and to actively engage you
in finding alternatives;”
The appellant then
proposed that further consultations be held on 20 February 2002.
This date was, however, subsequently changed
at the instance of Van
der Merwe and a new date of 25 February 2002 was fixed.
[12] On the 25
th
February 2002 the respondent brought her attorney along to the
consultation meeting. However, Van der Merwe, having sought legal
advice, refused to allow the attorney to attend the consultation. He
suggested to the respondent that they, the two of them, i.e
continue
with the consultation but the respondent was adamant that she would
not consult without her attorney. The meeting reached
a deadlock.
[13] Thereafter the
respondent’s attorney addressed a letter of 25 February 2002 to
the appellant. In that letter he confirmed
acting for the respondent
and stated that the meeting of that day had been postponed at the
instance of Van der Merwe in order
for Van der Merwe to obtain legal
advice. He also indicated that he would be awaiting proposals
regarding new dates and times for
another meeting. The attorney had
earlier handed his business card to Van der Merwe so that the latter
could contact him. The
respondent’s attorney did not testify.
The respondent did not in her evidence show that Van der Merwe was
meant to come back
to her attorney about allowing the attorney in the
consultation. In his evidence Mr Van der Merwe made it clear that,
when they
all parted, his stance was known and it was that he would
not allow the respondent’s attorney to be part of the
consultation.
[14] On the 28
th
February 2002 the appellant addressed a letter to the respondent.
The first three paragraphs of the letter read thus:
“We wish
to place the following on record:
1. Following our letter dated
08/02/2002 we were under the impression that you would meet with
myself regarding our notice to you
about the intended restructure.
Although a date had been proposed in the abovementioned letter you
did not attend this meeting
and requested it to be postponed to the
25/02/2002.
2. However, we were somewhat surprised
that you chose to attend the meeting on the 25
th
of
February with your lawyer. At no stage did you request the company
nor inform the company hereof. We furthermore of the view
that we
have embarked on a process of consultation with you, which is an
internal matter, and that the company cannot allow outside
representation while the internal process has not yet been completed;
3. You have furthermore indicated that
you were not willing to consult with the company without legal
representation being present.
For the abovementioned reasons we
cannot allow this.”
[15] In the letter the
author proceeded to express the view that by insisting on legal
representation, the respondent had frustrated
the consultation
process and that in the circumstances the appellant had been entitled
to proceed with its restructuring, in terms
of which the respondent’s
position had become redundant. The appellant offered the respondent
an alternative position of
a sales representative and invited her to
contact it to discuss this. It indicated that if the respondent was
not interested in
the position it would still be prepared to consider
other alternative proposals, alternatively, the respondent should
contact it
to discuss a severance package.
[16] The respondent’s
attorney responded by a letter dated 1 March 2002. In that letter he
started off by complaining about
the appellant communicating directly
with his client when he had made it clear that all communications
should be addressed to him.
He stated that the meeting of 25
February 2002 had been postponed at the instance of Van der Merwe and
denied that the respondent
had frustrated the consultation process.
He then emphatically stated the following:
“
We advise that our client
rejects your offer and confirm that she shall contact yourself
regarding the severance package.”
This means that the
respondent was no longer interested in taking up the invitation to
propose alternatives at that stage.
[17] On the 11
th
March 2002 the respondent met with Van der Merwe. A full transcript
of that meeting is part of the record. It was a heated meeting.
The
discussion at this meeting focussed on two alternative proposals
which the respondent made. These were either that Marie
Greeff be
given the Massmart channel so that the respondent could retain her
position or that the respondent be given the Massmart
channel. Van
der Merwe rejected these. Van der Merwe stated that someone had
already been appointed to the Massmart channel.
Accordingly, he said
that he could not accept the proposal involving the Massmart channel.
The respondent asked why a person had
been appointed to the Massmart
channel while consultations with her were still on and demanded that
she person be fired. Van der
Merwe’s response was that the
position needed a person with qualifications in finance, which the
respondent did not have.
He said that the person appointed, Gert de
Bruin, had a B.Com degree. The respondent also queried why that
channel was not incorporated
into Marie Greeff’s portfolio.
Van der Merwe’s response was that Marie Greeff would have had
to get training first.
The respondent was not prepared to consider
the alternative post of the sales representative. The meeting
reached a deadlock.
On the 18
th
March 2002 the respondent
was given a notice of termination of her services.
THE FINDINGS OF THE COURT
A
QUO
:
[18] In finding in favour
of the respondent, the court
a quo
essentially dismissed the
appellant’s defence set out in paragraph 33.3 of its answer to
the respondent’s statement
of case, which reads as follows:
“
33.3 the respondent had offered
an alternative position to the applicant without loss of benefit as
an alternative to retrenchment,
which position the applicant had
refused to accept.”
The court
a quo
found that the appellant had failed to show that the alternative post
of a sales representative that it had offered to the respondent
entailed the respondent retaining the same salary and benefits that
she had enjoyed as a channel manager and consequently that
the
respondent acted reasonably in rejecting such offer. This is one leg
of the judgment.
[19] The court
a quo
also made a finding to the effect that the appellant had
pre-determined the decision to restructure and thus render redundant
the respondent’s post. The court
a quo
expressed itself
as follows:
“
I am of the opinion that the
company was entitle (sic) to restructure its business. To do this it
was required to consult timeously.
It did not do this. The
probabilities point to it having decided on the restructuring of Ms
Velthuis’ post prior to the
appointment of Ms Greeff.”
and further
“
It was the company’s case
that between 4 February (the date on which Ms Greeff was appointed)
and 8 February (the date on
which the section 189 letter was handed
over) that it contemplated a restructuring which would involve the
position of the channel
manager for the Spar division in Gauteng.
This is so improbable that it must be rejected rightout.”(sic)
THE APPEAL:
The issues
(a)
RESPONDENT’S REJECTION
OF THE ALTERNATIVE POST:
[20] It is now opportune
to discuss these findings of the court
a quo
and I propose to
deal first with the main ground on which the court
a quo
found
for the respondent. It is common course that, when the appellant
declared the respondent’s position redundant by letter
dated 28
February 2002, it offered the respondent an alternative position of a
sales representative and invited her to consult
on
inter alia
this aspect. In response, the respondent, through her attorney,
rejected this offer outright and proposed instead to talk only
about
a severance pay. The evidence as a whole reveal that the respondent
was not interested in even discussing this offer and
her stance at
the meeting with Van der Merwe on 11 March 2002 confirms this. She
wanted either that the Massmart channel be incorporated
into Marie
Greeff’s portfolio so that she could retain her position or
that she herself be given the Massmart channel. Nothing
more and
nothing less.
[21] The following
exchange between the respondent and Mr Van der Merwe at the meeting
is instructive:
“
NvdM So what are you saying,
your letter came through say that you don’t accept the position
that we are offering you.
KV And I don’t accept the
retrenchment and I don’t accept the package – whatever
package you are offering –
the package is immaterial. In terms
of the retrenchment or redundancy or whatever you want to call it –
I don’t accept
any of the above. Still waiting for you from
the 25
th
when nobody was here with my attorney. I’m
still waiting for you to consult back with me so that you could see
my proposal.
I had it written and you wouldn’t consult with
us. In terms of the retrenchment, redundancy, dismissal whetever
other than
a disciplinary I am entitled to external representation –
we were here to consult with you, we are still waiting for that
consultation.”
Later the following
appears in the record:
“
NvdM Where do we go from here?
You are not accepting the position that we are offering you, you are
not accepting a retrenchment
package.”
Once again later the
respondent said:
“
KV My proposal is that you give
me back my job in terms of I have done nothing wrong.”
Finally the following
exchange took place:
Nvdm “We’ve offered you
the position, we’ve offered you the package. At the moment
that’s the two options
on the table.
KV Nico, do you honestly think that
the repping position is going to help anyway. The relationships
aren’t there so.”
That was the last mention
of the position of a sales representative in the entire discussions.
[22] It is clear that the
question of what the post entailed never arose precisely because the
respondent was not interested in
discussing it and her attitude
perfectly accorded with what her attorney had communicated to the
respondent by way of the letter
dated 1 March 2002. The last
mentioned quotation of the exchange between Van der Merwe and the
respondent in the preceding paragraph
reveals that the respondent
said that she did not think that she could take the position because
“the relationships aren’t
there” anymore. In my
view, the appellant could not be expected to give the details of the
offer under those circumstances.
I do not think that there was a
proper basis for the Court a quo to reject Van der Merwe’s
evidence that the respondent would
have kept her salary if she
accepted the offer of the position of a sales representative.
[23] At any rate, it is
not even known for sure that the respondent would have accepted the
offer had the full details thereof been
disclosed. Her evidence on
this aspect is interesting. In her evidence in chief she was asked
whether she would have accepted
the position of a sales
representative if it was to be on the same salary level. Her
response was as follows:
“
If the company had offered you
a sales representative position on the same salary level, would you
have accepted it?
--- In light of the fact that I am a
single parent, I
probably would have
.”
(my underlining.)
When she was asked under
cross-examination why she had rejected the offer when it was made on
28 February 2002, she replied that
nothing had been offered. She
would not respond when she was referred to the relevant letter. When
it was pointed out to her
that the letter from her attorney made it
clear that she was not interested in the position, she replied that
she had acted on
emotions when instructing her attorney to reject the
offer. Indeed, the record reveals her to have been very emotional
and confrontational
and that partly accounts for the failure of the
consultation process, on this aspect.
[24] For these reasons I
do not agree with the finding of the court
a quo
that the
respondent was justified in rejecting the offer of an alternative
post.
(b)
WAS THE DECISION TO RETRENCH
PRE-DETERMINED:
(i) T
he cases of
the respective parties:
[25] I now turn to
consider the question of whether the appellant had already taken a
decision to restructure and thus render the
respondent’s
position redundant when it commenced with the consultation process.
This was in fact the thrust of the respondent’s
case.
Throughout the entire trial the respondent maintained that her
retrenchment had been pre-determined. From the first day the
respondent adopted the attitude that the consultation process would
be a futile exercise because the appellant had already made
up its
mind. The extensive cross-examination of Van der Merwe, the lengthy
examination in chief of the respondent and her rather
unusually
lengthy re-examination were all aimed at proving this. In his heads
of argument and oral argument in this Court, Counsel,
for the
respondent largely focussed on this aspect. He strongly supported
the finding of the court
a quo
in this regard. He submitted
that the effect of this finding was that the respondent’s
dismissal had been substantively
unfair.
[26] The appellant, on
the other hand, maintained that it had not taken any firm decision to
restructure and to render the respondent’s
position redundant
when it issued the notice in terms of section 189. It pointed to the
contents of the notice which make it clear
that these were proposals,
that the respondent was being invited to make an input, that the
appellant had kept an open mind and
had been prepared to change its
stance to accommodate any reasonable proposals from the respondent.
It drew a distinction between
what was envisaged when Marie Greeff
was recruited and engaged on 4 February 2002 and what changed after
the latter date. It maintained
that it only contemplated
restructuring after the appointment of Marie Greeff and had a
legitimate reason to do so based on economic
considerations.
[27] Argument by
appellant’s counsel
proceeded along similar
lines in this Court. She referred to the following sentence in the
part of the judgment of the court
a quo
that I have quoted above where the Court said the following:
“
I am of the opinion that the
company was entitle (sic) to restructure its business.”
Counsel for the appellant
submitted that this statement mean’t that the Court a quo had
found that the appellant had a valid
reason to restructure. She
submitted that the consultation process was frustrated by the
respondent when she refused to consult
without her attorney and that
she failed to make any proposals because of her unreasonable
insistence on retaining her position
regardless of the need to
restructure. Counsel submitted that that the respondent was
retrenched purely due to her own unreasonable
refusal to consider the
alternative post offered and that the court
a quo
was wrong in
awarding her compensation.
(ii)
Discussion of
the evidence:
[28] There are incidents,
developments and other factors in this matter that cumulatively would
seem to justify the conclusion that
the appellant had already taken a
decision to restructure and remove the respondent from her position
by the time the notice in
terms of section 189 was issued. I proceed
to deal with each incident with reference to the evidence, the
correspondence and other
evidentiary material on record.
[29] In the first place,
the respondent had been recruited specifically because of her
previous connections with the Spar supermarkets
in order to boost the
sale of the appellant’s products and expand its business with
the Spar supermarkets in Gauteng. She
testified that during her
interview she was told that she would grow with the business up to
national level. Van der Merwe denied
the latter claim but,
nonetheless, made it clear that the respondent had been an excellent
performer who had been meeting the targets
set for her. The
respondent had hardly been in the job for six months when another
person, namely, Marie Greef, with the same
Spar connection background
was recruited and, as will be seen shortly, soon after her
appointment, Marie Greeff had for all practical
purposes taken over
the respondent’s channel.
[30] Secondly, Van der
Merwe testified that the idea of restructuring was only conceived
after Greeff’s appointment. Yet
he also conceded that, when
Greeff was being interviewed between December 2001 and January 2002,
the restructuring was already
under consideration. He explained this
apparent contradiction by saying that the focus then was on
marketing, the idea being to
create the position of a marketing
specialist who would see to it that the company’s brand was
aggressively pushed into the
market on a national level. In this
scenario, the position of the respondent would not be affected, so he
testified.
[31] Apart from the fact
that it is doubtful that the creation of a new post that would not
affect existing positions in a company
can be called restructuring,
this explanation is questionable given that Van der Merwe also
testified that restructuring is not
something that can be decided
upon overnight and that they had toyed with the idea for some three
months prior to issuing the section
189 notice, which would cover the
period during which Greeff was recruited and interviewed.
[32] Furthermore, Van der
Merwe testified that the real restructuring was only contemplated in
the four days between Greeff’s
appointment and the issuing of
the sec 189 notice on 8 February 2002. This evidence contradicts his
evidence that it takes time
to decide on a restructuring. In all
probability Greeff was brought on board as part of the restructuring
involving the respondent.
This conclusion is fortified by what
happened shortly after Greeff’s appointment as set out
hereunder.
[33] On 5 February 2002,
a day after Greeff’s appointment, Vander Merwe circulated an
e-mail in which he called upon people
responsible for specific
accounts to prepare their budgets for the period ending 30 April
2003. Greeff’s name already appeared
there as the person
responsible for the Spar channels and the respondent was excluded.
In trying to explain this, Van der Merwe
pointed to the use of the
words “Spar National (all divisions)” and said that
Greeff was to co-ordinate the budgets
of all the Spar channels
countrywide, whereas the respondent was responsible for the budget of
only the Gauteng Spar channels,
so that the e-mail did not mean that
the respondent was no longer handling her channel. This evidence is
somewhat contradicted
by Marx who had been the respondent’s
immediate superior. He testified that, if the respondent was still
handling the Spar
channel, he would have expected her to be on the
list instead of Marie Greeff. This tends to corroborate the
respondent’s
evidence that her channel had already been taken
over by Greeff. The respondent testified further that she had
subsequently made
inquiries from her clients and these would no
longer deal with her because they had been advised that another
person was now in
charge.
[34] The respondent
further testified that at one stage she and Van der Merwe had an
appointment with a person who did purchases
for the Gauteng Spar
outlets, Vanesh, on 6 February 2002. They were supposed to discuss
price increases. Van der Merwe cancelled
the appointment but
subsequently went to meet Vanesh without her. She said that this was
because she had already been removed
from her Spar channel. Van der
Merwe agreed that he had cancelled the appointment and that he,
nonetheless, had met Vanesh alone.
He said that this was not because
the respondent had been removed from her channel, but that he had
decided to have a confidential
discussion with the buyer. He said
that he was entitled to see his customers alone and that there was
nothing wrong with it.
In my view, Van der Merwe’s explanation
is not convincing. A discussion of price increases relating to the
respondent’s
channel needed her involvement, especially given
the respondent’s testimony that she had earlier been subjected
to a disciplinary
inquiry on account of failing to follow proper
procedures in communicating price increases to customers.
[35] As indicated
earlier, after the meeting of 14 February 2002 another meeting was
scheduled for 20 February 2002. This was cancelled
by Van der Merwe
on the basis that he would not be available. He did not disclose to
the respondent that in fact he would be attending
a company workshop
on that same day, from which the respondent was excluded. Van der
Merwe’s explanation for excluding the
respondent from this
workshop was that they were still consulting with her. It is a
disingenuous explanation and lends credence
to the respondent’s
contention that she was no longer seen as being part of the company.
[36] The meetings that
the respondent had with Marx on 28 February 2002 and Schreuder on 30
January 2002 should be seen against
the background of the above
developments. Marx was emphatic that the only restructuring about
which he informed the respondent,
was the change in the reporting
lines and he made it clear that this involved all the people that had
reported to him. Schreuder
testified that he had been aware from as
early as December 2001 that a restructuring was in the offing. He
said that a decision
had been taken to restructure but when pressed
under cross-examination he said that that decision related only to
change in the
reporting lines. He had been unable to answer when
pressed by the respondent to tell her where she fitted in the
company.
[37] It will be noted
that the respondent was desperate to get clarification from Schreuder
about her future, precisely because
of what she says Marx had told
her telephonically after the meeting on 28 February 2002, namely,
that she would lose her Spar channel
but that she would retain her
salary. Is it a coincidence that a few days later she gets a notice
in terms of which it is proposed
to incorporate her channel into
Greeff’s portfolio and she is subsequently offered (on the
appellant’s own version)
a sales representative position
without change in her salary? In my view, the probabilities favour
the respondent’s version
of what Marx would have told her on 28
January 2002. The inference becomes inescapable that a decision had
already been taken
to make her position redundant as early as January
2002 at the latest.
[38] In the light of the
above I am of the view that the appellant decided to remove the
respondent from her position before the
commencement of the
consultation process or at any rate before the consultation process
could be completed. The appellant was obliged
to complete the
consultation process first before it could make such a decision. For
this reason the dismissal of the respondent
was procedurally unfair.
Relief
[39] Although the
respondent thought that the appellant had decided to remove her from
her position before there could be a consultation
between them, she,
nevertheless, took part in the subsequent consultation until a
deadlock was reached on whether the consultation
should take place
with or without her attorney. The appellant’s stance was that
it wanted to continue with the consultation
process with the
respondent but that this would have to occur without the respondent’s
attorney while the respondent took
the stance that she wanted to
continue with the consultation process but with her attorney taking
part in the consultation process.
The appellant was in law entitled
to take the position that it took with regard to the respondent’s
attorney. Accordingly,
in so far as the collapse of the consultation
process may have been due to whether or not the respondent’s
attorney should
have been allowed to take part in the process, the
respondent should take the blame therefor.
[40] Another matter which
is of huge importance is the fact that, after the parties had reached
a stalemate with regard to the respondent’s
attorney attending
the consultation, the appellant addressed a letter to the respondent
in which it made an offer to her of a position
as sales
representative. The appellant asked the respondent to discuss the
offer further with it if she was interested. The following
day the
respondent’s attorney rejected that offer out of hand and
indicated that what was left was to discuss the severance
pay. This
notwithstanding, another meeting subsequently took place between the
appellant and the respondent but no agreement could
be reached.
Subsequently the respondent was dismissed.
[41] In his evidence Mr
Van der Merwe testified that the appellant had intended to keep the
respondent on her managerial salary
if she accepted the offer
referred to above and became a sales representative. The letter
conveying the offer of this position
to the respondent had not
disclosed this. The respondent had also not asked about this aspect.
It seems to me that the respondent
should take the blame for this
because she rejected the proposal without asking for any further
information despite having been
invited to do so if she was
interested.
[42] Under
cross-examination the respondent said that her response through her
attorney’s letter was an emotional one. She
seemed to imply
that in retrospect she thought that she should not have rejected the
offer without asking for more details. She
said in effect under
cross-examination that she would have been a fool to reject such an
offer if she had known that there would
be no reduction in her
remuneration. If she had not reacted with emotion to that offer, the
respondent, if we are to accept her
evidence under cross-examination,
would have accepted that offer and there would in all likelihood have
been no litigation about
this matter. I must say that in
re-examination, the respondent did not appear to be someone who would
have taken the offer even
if she had known that she would have kept
her salary. If she had taken the offer, she would have enjoyed that
salary for a long
time.
[43] The appellant’s
letter to the respondent offering her the position of a sales
representative invited her to discuss the
matter with the appellant
if she was interested in the job. If the respondent had been
interested, she would have asked Mr Van
der Merwe whether she would
keep her salary if she accepted the offer. If she had asked about
this, she would have been told that
she would keep her salary.
However, because she was not interested at all in the position, she
rejected the offer without asking
any questions including a question
about the salary. She has herself to blame for the consequences that
flowed from her decision
in this regard. All the suffering that she
testified about which she went through because she was unemployed
after the dismissal
is suffering that she would not have gone through
if she had accepted the offer.
[44] I am of the view
that the Court a quo erred in rejecting the evidence that the
appellant intended to pay the respondent the
same salary as she had
been paid before if she accepted the offer of the position of a sales
representative. There was no proper
basis to reject this. There may
be a suspicion that the appellant was not going to pay the respondent
the same salary but the matter
cannot be decided upon suspicions.
[45] In the light of the
above I would exercise my discretion against awarding the respondent
compensation in the light of the fact
that she brought all of the
suffering upon herself. I am of the view that the Court a quo would
probably have exercised its discretion
in the same way had it
accepted that the respondent had rejected an offer that would have
given her the same salary as the salary
she had been paid before.
[46] With regard to costs
the Act provides that an order of costs should be made if it accords
with the requirements of the law
and fairness to make one. In my view
the requirements of the law and fairness dictate that no order as to
costs should be made
both in respect of the appeal and in respect of
the proceedings in the Court below.
[47] Accordingly, I make
the following order:
The appeal against the
order that the respondent’s dismissal was procedurally unfair
is dismissed.
The appeal against the
order awarding the respondent compensation is hereby upheld.
There is to be no order
as to costs on appeal.
The order of the Court a
quo is set aside and replaced with the following one.
“
(
a) The
applicant’s dismissal was procedurally unfair but substantively
fair.
No order is hereby
made for either the applicant’s reinstatement or
re-employment or for the payment of compensation to
the applicant.
There is to be no
order as to costs.”
______________
H.M. MUSI, AJA
I concur.
__________
ZONDO, JP
I concur.
__________
JAPPIE, AJA
On behalf of
appellant: Adv Louise Charoux
Instructed by: Yusuf
Nagdee Attorneys
On behalf of
respondent: Adv Michael van den Barselaar
Instructed
by: Attorney Eastes
Date of judgment: 15
June 2007