South African Airways v Bogopa and Others (JA 36/05) [2007] ZALAC 10; [2007] 11 BLLR 1065 (LAC); (2007) 28 ILJ 2718 (LAC) (3 August 2007)

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[2007] ZALAC 10
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South African Airways v Bogopa and Others (JA 36/05) [2007] ZALAC 10; [2007] 11 BLLR 1065 (LAC); (2007) 28 ILJ 2718 (LAC) (3 August 2007)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: JA 36/05
In
the matter between:
SOUTH AFRICAN AIRWAYS
Appellant
and
MOGAGABO AVC BOGOPA
First
respondent
LAWRENCE
MABUNDA
Second
Respondent
SINDY
ANGELIQUE MABE
Third
Respondent
VICTOR
THOMAS MANGANYI
Fourth
Respondent
BRADLEY
SIBUSISO
ZIKHALI
Fifth
Respondent
MERYLIN
ANNE POWYS
Sixth
Respondent
BAVESH
DESAI
Seventh
Respondent
JUDGMENT
ZONDO JP
Introduction
[1] This is an appeal against a
judgment of the Labour Court given by Pillay J after a trial
concerning a dispute between the South
African Airways, the appellant
herein, and the respondents about the fairness of the appellant’s
dismissal of the respondents from
its employ on the 30
th
June 2000. The Labour Court found the dismissal to have been both
procedurally and substantively unfair. It declined to order the
reinstatement of those of the respondents who had sought
reinstatement. It ordered the appellant to pay each one of the
respondents
a certain amount by way of compensation. The appellant
sought and obtained leave from the Labour Court to appeal against
that order.
The respondents who had sought reinstatement did not note
a cross-appeal against the Labour Court’s refusal to order their
reinstatement.
The
facts
[2] The
appellant, as already stated above, is the South African Airways. The
respondents were employed by the appellant in its Inflight
Service
Department in Johannesburg as crew managers. If it becomes necessary
later on to give more precise details of the positions
that they each
held, I shall do so then. They were dismissed from the appellant’s
employ with effect from the 30
th
June 2000. The appellant’s dismissal was said to be for operational
requirements of the appellant. The respondents’ dismissal
was the
culmination of a series of events and communications that took place
between the appellant and its employees in the In-flight
Service
Department in general but with the respondents in particular. I deal
with those events and communications hereunder.
[3] Mr Desai, the only one of the
respondents to testify, gave his evidence on a number of issues and
events. Mr Desai testified that
about 28 January 2000 an entity known
as Bain and Company, an independent consultancy that had been brought
in by the Chief Executive
Officer of the appellant at the time, a Mr
Colman Andrews, made available a report compiled pursuant to an audit
that it had conducted
on the Inflight Service Department across the
board. Mr Desai said that in terms of that report Bain and Company’s
audit had found
that with regard to the Inflight Service cabin crew
management there was only “
a
need for process of engineering and reaffirming of the key
performance areas of the individual cabin crew managers
”.
Mr Desai testified that on the 4
th
to the 6
th
February 2000 there was a “
strategic
break away to conform our key performance areas to the
recommendations of the Bain and Company audit
”.
This evidence given by Mr Desai was not challenged.
[4] Mr Martin Kemp, who was the
immediate superior of the respondents, and Mr Basson, who was the
human resources Manager, testified
on behalf of the appellant. The
appellant did not call any other witness. Mr Kemp testified that at
some stage in April or May 2000
a meeting took place which was
attended by the senior managers of the Inflight Service Department.
Those who attended the meeting
included the Vice-President: Inflight
Services : Ms N Isaacs, Mr Kemp, Mr Basson and others whose identity
is of no significance
for present purposes. According to Mr Kemp the
meeting was a strategic session. None of the respondents had been
invited to that
meeting nor had there been any prior discussion with
them about the subject of the meeting. Mr Kemp testified that the
senior management
had found that there was “
lack
of efficiencies
”
within the Inflight Service Department some of which were due to the
way that the Inflight Service Department was structured.
He said that
there was no accountability. In this regard Mr Kemp made the example
that there would be three managers responsible
for a group of
employees on a specific rank of cabin crew.
[5] Mr Kemp said that in the Inflight
Service Department there were a crew management side and an
operational side. He said that it
was at that strategic session that
it was decided to do away with the old structure of the department
and to adopt a new structure.
He said that the senior management
believed that through the new operational structure the department
would be able to achieve higher
service levels, cost savings and
efficiency. Mr Kemp said that in the new operational structure two
positions among the positions
that had been occupied by the
respondents in the old structure were going to be done away with. He
said that the appellant decided
that the best competency fit test
would be used to decide who would be appointed to positions in the
new structure of the department.
He further stated that except for
three of the members of the management in the department - that is
the senior management – each
employee in the department would be
required to submit his or her curriculum vitae and apply for
positions in the new structure.
When he gave evidence, Mr Kemp said
that these decisions could be changed if, during consultation with
the employees, it was shown
that they should be changed. This
evidence by Mr Kemp was not challenged.
[6] Mr Desai testified that on the
19
th
May 2000 an electronic mail information circular was sent out
notifying the respondents and other crew managers in the Inflight
Service
Department that on Monday, the 22
nd
May 2000, there would be what Mr Desai referred to as “
a
mass inflight services general management meeting”.
He
said
that no agenda was provided for the meeting.
[7] On the 22
nd
May 2000 a meeting took place between the senior management of the
Inflight Service Department and the crew management. It was addressed
by Ms Isaacs. A letter was given to each one of the crew managers,
including the respondents, dated the 22
nd
May 2000. There is a dispute between Mr Kemp and Mr Desai whether
that letter was given before the commencement of the meeting or
after
the meeting. Mr Desai testified that the letters were given to the
crew managers on their arrival at the meeting. Mr Kemp testified
that
this occurred after the meeting. In the view I take of the matter it
does not matter much whether the letters were given before
or after
the meeting. However, I am prepared to assume that they were given
before the commencement of the meeting. Actually, Desai’s
version
in this regard seems very persuasive.
[8] At the meeting of the 22
nd
May Ms Isaacs made a presentation to the crew management. Mr Kemp’s
evidence was that most of what she said was what was contained
in the
letters of the 22
nd
May 2000 referred to above which were addressed to the crew managers.
For that reason and the reason that the contents of that letter
are
very important I propose to quote a sample of those letters. The body
of such letter read as follows:
“
As a result of the stringent
demands placed by the aviation market on SAA and the need to deliver
a more effective In-flight Services
operation it has been decided to
restructure certain operations at In-flight Services. A number of
options have been considered and
it has been decided that the revised
organisational structure would be the most cost effective manner in
which to provide an effective
managerial control.
This has resulted in the new positions being created,
which differ significantly from the current positions and also the
number of
jobs in the new structure. The new structure effectively
renders all current Crew Management positions redundant and as a
result
you are an affected employee.
It
is our intention to fill the new positions at In-flight Services by
way of recruitment and selection on the criteria of best competency
fit. Should you be interested in these positions you are required to
hand your C.V to Recruitment and Selection by no later than
12H00 on
Monday, 29 May 2000. Selection processes will be completed by 15 June
2000.
In the event that you are not successful in being
appointed to one of the new positions you will then be effectively
redundant and
informed of that decision. Redundant employees may
elect to take voluntary severance or apply for alternate positions in
S.A.A on
the basis that they are successful in any recruitment and
selection procedure followed for such positions.
It is envisaged that any redundant employees’
services will therefore be effectively terminated by no later than 30
June 2000 with
payment in lieu of notice.
You are hereby invited to provide and discuss any
inputs or alternative options you may have, with your Senior Manager,
Martin Kemp.”
[9] The respondents’ version of
what happened at the meeting of the 22
nd
May and afterwards was given by Mr Desai. Mr Desai testified that on
Monday, the 22nd May 2000, the crew management assembled in
the
boardroom for the meeting. He said that all managers were present. He
said in part: “
As
we arrived in we were handed out brown envelopes and on the cover
there was a title ‘retrenchment packs’. We took up our seats.
We
were informed not to open our packs until the information session was
over. Ms Noedene Isaacs, our vice-president at the time,
went on to
do a presentation regarding [the] restructuring of Inflight Services
and notification to us. I am just summing up in the
gist,
notification to all crew managers. Well specifically I am talking
about crew managers, but just notifying all managers at 110
level and
109 level, in some cases, that they were now effectively redundant
and would have to re-apply for their positions. She
completed quite
an extensive presentation and then she invited questions
”.
[10] It is important to note that the following were
some of the points made in the letter:
a decision had already been taken to do away with the
structure which was operational at the time and to use a new
structure;
the crew managers, including the respondents, were
being informed that they were effectively rendered redundant by
the new structure;
new positions had been created which
“
differ
significantly from the current positions and also the number of jobs
in the new structure;”
there would be a recruitment and selection process to
fill the positions in the new structure;
the criterion that would be used to
select people to fill positions in the new structure would be the
“
best competency
fit
”;
each crew manager who was interested
in filling a position in the new structure had to hand in his or her
curriculum vitae to the
Recruitment and Selection section by no
later than 12h00 on the 29
th
May 2000;
the selection process would have to
be completed by the 15
th
June 2000;
the respondents were invited to
“
provide and
discuss any inputs or alternative options
”
that they may have had with Mr Kemp;
if the respondents and the other
crew managers did not succeed in being appointed to any of the
positions in the Department, they
would effectively be redundant and
would be informed of that decision at which stage they would have an
election to make. They
could either take a voluntary retrenchment
package and leave or they could apply for any vacant positions
within the appellant
but outside the Inflight Services Department.
If they took the latter option, the recruitment and selection
procedure would be
followed;
it was envisaged that the services of employees who
were redundant would be terminated by no later than 30 June 2000.
[11] Mr Desai further testified that
a new structure for the department was handed out to the crew
management. He said that on seeing
the new structure he noticed that
some people had already been assigned positions in the new structure.
He said that he then asked
why some people had been slotted in the
new structure when
they
were being required to apply. He said that, for example, there was a
Mr Paul Naicker who was a fellow colleague of his and a 110
manager
who had suddenly been placed in the new structure. He also referred
to a Mr Lenley Sharp who, Mr Desai said, was busy on
a certain
project for a certain period of time in the Inflight Service
Department and, once the project had been completed, was meant
to
move back to the human resources department where he was based. Mr
Desai said that, when he raised these questions, Ms Isaacs
reprimanded him saying that he was “
inciting
chaos
” and that
he should keep quiet. Mr Desai said that Mr Zikhali, one of the
respondents, asked the relevance of the restructuring
in the light of
the team building exercise that had been done pursuant to the audit
of Bain and Company. Mr Desai said that Mr Zikhali
was instructed by
Ms Isaacs to remain silent for the rest of the meeting.
[12] Mr Desai further stated that Mr
Thomas Manganye, one of the respondents, asked what the justification
was for the fact that the
severance pay for those who agreed to take
a voluntary retrenchment package was on a sliding scale depending on
when one took it.
Mr Desai said that either Mr Kemp or Mr Basson or
both answered Mr Mangaye by saying that that was in accordance with
the appellant’s
standard policy. Mr Desai further testified that Mr
Mabunda, also one of the respondents, asked what the status of the
crew managers
was since they had been declared redundant. He also
asked what the crew management’s reporting lines would be and what
their authority
in terms of management would be. According to Mr
Desai, at this stage Ms Isaacs became “
considerably
annoyed
” and said
that the crew management should take those questions up with their
line managers. The respondents’ line manager was
Mr Kemp. The
meeting was then adjourned.
[13] Mr Desai’s evidence about what
happened at the meeting of the 22
nd
May 2000 as set out above was not disputed in any significant way. Mr
Kemp simply disputed the evidence that the envelopes or packets
marked “
retrenchment
packs
” were given
to employees at the commencement of the meeting. His version was that
the envelopes or letters were given after the
meeting. As I have said
above, in my view which version is the true version on this point
does not make much difference. The fact
of the matter is that, when
the meeting began, the envelopes had been prepared already. Mr
Desai’s evidence as to the questions
which Mr Desai said were asked
and what he said were the reactions from Ms Isaacs and Mr Kemp and or
Mr Basson was not disputed.
On this evidence the appellant treated
the crew managers, including the respondents, very badly and, indeed,
in a very insensitive
manner.
[14] After the meeting at which Ms
Isaacs had made a presentation, a meeting took place between Mr Kemp
and the respondents. It is
possible that there were other employees
at the meeting as well. This meeting took place because Ms Isaacs had
told those who had
attended her presentation that the employees could
direct their questions or queries to their line managers. It would
seem that some
of the questions that had been asked at Ms Isaac’s
presentation and had not been answered were taken up at the meeting
between
the respondents and Mr Kemp. Mr Kemp’s version about what
happened at that meeting differs in certain respects from that of the
respondents though their respective versions do converge in respect
of certain points.
[15] Mr Desai testified that Mr
Mabunda asked Mr Kemp the same question that he had asked Ms Isaacs.
According to Mr Desai, Mr Kemp’s
response was to urge the
respondents to comply with the process and to tell them that their
behaviour in questioning the process
was unbecoming. Mr Desai
testified that Mr Kemp said that a decision had been taken and that
it was irreversible. Mr Desai testified
that “
there
were some back and forth discussion and there it ended with Mr Kemp
telling Mr Mabunda that his continued behaviour would cost
him dearly
when it came to the appointment process to the new structure
”.
[16] Mr Desai testified that, after
he and his colleagues had left Mr Kemp’s office, they had a
discussion among themselves assessing
the situation and they decided
that, in the absence of clarity on the issues that they had raised
and “
the hostility
of the senior management towards us, that we should seek legal advice
which we subsequently did
”.
Mr Kemp said that he could not recall whether he had said that the
decision was irreversible.
[17] Mr Kemp subsequently invited the
respondents and other employees to another meeting on the 25
th
May 2000 in which a consultation would also take place. Initially the
respondents indicated through their attorneys at the time that
they
would not be able to attend the meeting owing to short notice.
However, after Mr Kemp had written to the attorneys effectively
insisting that the respondents should attend the meeting, they
attended the meeting. Mr Basson also attended the meeting. Mr Desai
testified that the respondents had decided amongst themselves that
“
it would be
perceived that we were not interested in any form of discussions and
that we should go ahead and go to the meeting armed
with information
that we got in terms of the legal advice, the informal opinion
”.
According to Mr Desai the respondents had elected him to be their
spokesperson.
[18] Mr Desai testified that at the
meeting of the 25
th
May he raised a number of issues with Mr Kemp. He testified that he
raised “
the issue
of the employment contracts in terms of consultation when
contemplating restructuring…”
He
also said that the respondents also raised issues relating to
compliance with the Labour Relations Act and consulting the
respondents
before and not after a decision had been made. Mr Desai
testified that Mr Kemp told them, particularly him as the
spokesperson of
the group, that “
our
continued insolence and dissent, our inciting behaviour or insolence
was being viewed as insolence and dissent and that it was
counter
productive for the current operations at Inflight Services”
.
Although Mr Kemp might not have admitted all the evidence given by Mr
Desai as to what happened at the meeting of the 25
th
May 2000, it would seem that, on the whole, Mr Desai’s evidence is
probably true. Mr Kemp’s behaviour as testified to by Mr Desai
would be consistent not only with how Ms Isaacs had herself treated
the respondents when they asked certain questions but with what
happened on the 26
th
May.
[19] According to Mr Desai, on the
26
th
May Mr Kemp called the respondents into his office. Once the
respondents were in his office, Mr Kemp informed them that they would
be put on “
administrative
leave
”. The
reason for the administrative leave, continued Mr Desai, was that “
in
the (indistinct) of the insolence and dissent and that we were
inciting colleagues at work and therefore it would be best that
we
were removed from the work environment and I think it would end on
the 15
th
…
”
Mr Desai testified that in terms of the policy of the appellant there
was nothing called “
an
administrative leave
”.
[20] Mr Kemp was not convincing when
in his evidence he tried to defend his decision to place the
respondents on the so-called “
administrative
leave
”. The more
he tried to defend his decision, the more, it seemed to me, he gave
one the impression that there was more to that decision
than he would
have been comfortable to admit. It is difficult to read the evidence
relating to the placement of the respondents on
“
administrative
leave
” without
getting a strong feeling that Mr Kemp and senior management were
annoyed or irritated at being asked certain questions
by the
respondents or by the respondents’ conduct in questioning the way
in which they were handling the restructuring and that
putting them
on administrative leave was intended to be punitive.
[21] On the 29
th
May 2000 an article appeared in the Business Report of “
The
Star
” dealing
with the issue of restructuring in the Inflight Service Department of
the appellant. The article also carried photographs
of the
respondents. The appellant’s senior management appears to have felt
very strongly about this article as will be apparent
from their
conduct on the 15
th
June which will be dealt with later herein. Two further articles
appeared in the same newspaper on the 30
th
May and 7
th
June dealing with the restructuring in the Department. On the 29
th
May 2000 the respondents sent a letter to Mr Kemp. Its contents are
important. For that reason I quote them in full. The body of
the
letter read thus:
“
1. With reference to the letter
dated 22
nd
May 2000 received from Noedine Isaacs, Vice President/In-flight
Services, a copy of which is attached hereto for your attention.
2. We refer to the last paragraph thereof and
therefore correspond with yourself.
3. At
this juncture we inform you that we are unable to participate in the
recruitment and selection schedule for no later than 12h00
of even
date.
4. The
reason for the aforesaid is that it is our opinion that the
restructuring and concomitant redundancy referred to in the aforesaid
letter is procedurally and substantively unfair and fails to comply
with the provisions of the Labour Relations Act.
5. Accordingly
we are unable to partake therein to avoid any potential prejudice to
our positions.
6. Our rights are hereby reserved.
7. Nevertheless we would welcome
an opportunity for consultation with yourselves regarding this
issue
”.
It will be observed that the
respondents made it clear that they would not apply for positions in
the Inflight Service Department.
However, it is also to be observed
that in the last paragraph of their letter they took the appellant up
on its invitation to them
to engage in a consultation with them as
contained in the appellant’s letter of the 22
nd
May 2000.
[22] Mr Kemp testified that after
reading the respondents’ letter of the 29
th
May 2000 he made a handwritten note thereon to respond to it. The
handwritten note was, inter alia, to the effect that the respondents
should contact his secretary to make an appointment to have a
consultation with him. He also gave his secretary’s telephone
number
in the note. When Mr Kemp gave his evidence-in-chief and under
cross-examination, his evidence was very vague about what happened
to
the letter after he had made the handwritten note on it. The
respondent’s version was that that handwritten note did not reach
them or the letter with the handwritten note was not sent to him.
[23] Mr Kemp’s secretary was not called to give
evidence. When Mr Kemp was being cross-examined, it appeared from
some other letter
addressed to him by the respondents that the letter
on which he had made the handwritten note had been delivered to him.
In the light
of this Mr Kemp became more emphatic that he must have
handed the letter back to the person who had delivered it to him
after he
had made the handwritten note.
[24] Counsel for the respondents
disputed the suggestion that the letter with the handwritten note
reached the respondents. He pointed
out to Mr Kemp two or three
things which, so he contended, did not support Mr Kemp’s version. I
do not think it is necessary to
deal with those aspects or factors
because what transpired during Mr Desai’s cross-examination tipped
the balance of probabilities
overwhelmingly in favour of Mr Kemp’s
version. The article that was published in the Business Report about
restructuring in the
appellant contained excepts from Mr Kemp’s
handwritten note made on the respondent’s letter of the 29
th
May. Mr Desai was unable to provide any sound explanation as to how
the journalist who wrote that article could have had access
to the
handwritten note if he did not get it from him or the respondents,
particularly because the journalist had interviewed Mr
Desai. Mr
Desai attempted to say that there were other people who had access to
the letter from whom the journalist could have got
the letter but,
really, that was an extremely remote possibility. The probabilities
are, as I have said, overwhelming that the journalist
got the letter
with the handwritten note from Mr Desai or one of the other
respondents. For the respondents to deny this was to deny
the
obvious. The effect of this is that the respondents did become aware
of Mr Kemp’s response to their wish to be consulted but,
for
certain reasons, they elected not to take him up on his invitation to
make an appointment through his secretary for a consultation
meeting.
[25] On the 7
th
June 2000 the appellant wrote to the respondents individually and,
inter alia, advised them that, as they had failed or refused to
apply
for positions in the Inflight Service Department, they had been
declared redundant in that department. The respondents were
also
advised in the letter that they could apply for any vacancies that
the appellant could be having outside the Inflight Service
Department
and, if they got appointed to some vacancies outside that department
before the 30
th
June 2000, the letter would become redundant. That letter also
reminded each one of the respondents that they were being invited
“
to
make any further representations you wish to make at any stage in
this regard
”. The
respondents failed to take this latter invitation up as well.
[26] The 15
th
June 2000 was meant to be the last day of the “
administrative
leave
” that the
appellant had given to the respondents against their will. However,
on that day they were served with notices to attend
a disciplinary
inquiry on the 27
th
June 2000 to answer certain allegations of misconduct arising from
their association with the articles that had been published in
the
Business Report on the restructuring in the Inflight Service
Department. The notices also informed the respondents that they
were
being suspended from work until the 27
th
June 2000 and were not to enter the appellant’s premises during the
period of suspension except with Mr Kemp’s permission. However,
it
said that they were “
required
to daily report telephonically before 09h00
”.
Precisely why this was necessary is, quite frankly, incomprehensible
to me.
[27] In a letter dated 15 June 2000
Mr Kemp wrote to each one of the respondents advising that in
discussions that he had had with
Mr Desai on the 13
th
and 14
th
June 2000 the latter had indicated that the respondents would not be
applying for any vacancies within the appellant. Mr Kemp,
accordingly,
sought confirmation from each one of the respondents
that what Mr Desai had said about him/her was true. He indicated in
the letter
that, if he received no confirmation by the end of that
day, namely, the 15
th
June 2000, that that was not the position, he would accept that it
was the true position. Mr Kemp testified that he received no response
to this letter. Indeed, it was common cause that what Mr Desai had
told Mr Kemp was a true reflection of the respondents’ attitude.
The respondents did not apply for any positions within the appellant
pursuant to Mr Kemp’s letter of the 7
th
June 2000.
[28] On the 27
th
June 2000 the respondents were found guilty in a disciplinary hearing
or in disciplinary hearings. The sanctions given to them were
those
of warnings. On the same day the appellant wrote a letter to each one
of the respondents and informed them that they would
be dismissed on
the 30
th
June 2000 for operational requirements. The letter did not specify
what the specific operational requirements were. However, during
the
evidence at trial both Mr Kemp and Mr Basson said repeatedly that the
respondents were dismissed because they did not apply for
positions
or because they did not take part “
in
the process
”.
Indeed, even in the notice of appeal to this Court the appellant
stated that the Court a quo should have held that the respondents
were dismissed because they refused to apply for positions. On the
30
th
June 2000 the respondents were dismissed.
[29] In the letters of dismissal
dated 27 June 2000 addressed to each one of the respondents Mr Kemp
pointed out that he/she would
not be paid any severance pay “
as
you did not make use of reasonable alternative employment offered to
yourself in terms of section 41(4) of the Basic Conditions
of
Employment Act
”.
Of course, the appellant misunderstood the legal position in respect
of this last point because in terms of section 41 of the
Basic
Conditions of Employment Act, 1997 (Act 75 of 1997) (“
the
BCEA
”) an
employee forfeits his right to severance pay if two conditions
prescribed therein are met. The one is that the employer must
have
made him an “
offer
of alternative employment
”.
The second is that the employee must have “
unreasonably
refused to accept
”
such offer. In this case the appellant never made the respondents an
“
offer of
alternative employment
”.
All the appellant did was to offer the
respondents
an
opportunity to be considered for alternative employment if they
applied. They were not guaranteed appointment if they applied.
They
could still have been rejected even if the prospects of that
happening were slim. The offer of alternative employment contemplated
in section 41(4) of the BCEA is an offer which upon acceptance by the
employee would automatically result in a contract of employment.
This
was not the case in this matter.
[30] It is necessary at this stage to
state that as its response to the respondents’ statement of claim
filed in the Labour Court,
the appellant filed an affidavit deposed
to by Mr Kemp. I do not propose to deal with its contents in any
detail. It is sufficient
to make certain observations about some of
its contents and then refer to some of the annexures to Mr Kemp’s
affidavit. Mr Kemp
said in his affidavit and in his oral evidence
that it was as a result of competition and the need to provide a
competitive service
that it was felt that the Inflight Service
Department needed to be restructured. He specified some of the
problems and said it was
believed that the new structure would help
to address them. In fact he went on to say that the changes that were
made did in fact
result in better service and cost savings. This
evidence was not challenged under cross-examination. Although there
was some reference
to the Bain and Company report and the break away
get-together which was held pursuant to that report, it was never
suggested to
Mr Kemp under cross-examination that the restructuring
that occurred was unjustified or unjustifiable.
[31] In his affidavit Mr Kemp
referred to annexure “
SAA1
”
which represented the new In-Flight Services Revised Operations
Structure. When one studies the revised structure, one can see
that
it had certain posts to which incumbents had already been allocated
and many vacant posts to which no incumbents had been assigned.
The
posts to which incumbents had already been assigned appear in the
first page of annexure “
SAA1
”.
The posts were those of Vice-President: In-Flight Services, Executive
Personal Assistant 110, Admin Officer 12 L Carine Klome,
Senior
Manager: In flight Academy, Senior Manager : Operations. Mr Kemp was
one of those who had already been assigned posts at the
time.
[32] Mr Kemp’s affidavit also had
annexure “
SAA3
”.
That annexure was a circular which was issued to crew managers in the
Inflight Services Department at the meeting of the 22
nd
May. Paragraph 1 of annexure “
SAA
3
” dealt with
selection criteria. The opening paragraph read as follows:
“
In
flight Services would be selecting redundant managers based on best
competency fit. Where jobs have changed significantly or are
new,
they will be advertised. Candidates who best fit the competency
profile will be selected for appointment.”
Paragraph 1.1 stated that the
“best
competency fit”
could be defined as follows:
“
Managers, applicants or candidates who demonstrate
the best fit to the behavioural indicators of the competencies
required to deliver
the outputs/outcomes of the job.”
It
went on to say:
“The
definition includes criteria such as knowledge, skills and attitude.”
Paragraph 1.2 of Annexure “
SAA3
”
read as follows:
“
Jobs that have changed significantly are jobs
where the outputs or competencies required to perform the outputs
will change to the
degree that the employee will be performing tasks
which are significantly different to those for which he/she is
performing. This
also implies that duties/responsibilities as
reflected in outputs have been added and or taken away. Job
advertisements will initially
be open to Inflight Services Managers,
whereafter any positions that remain vacant will be open to external
candidates.”
[33] In its reply to the specific
allegations contained in the respondents’ statement of claim, the
appellant’s defence to the
respondents’ challenge to the
substantive fairness of the respondents’ dismissal was that the
respondents refused to apply for
positions in the appellant. It was
common cause that the respondents had refused to apply for positions
in the Inflight Service Department.
With regard to applying for
positions within the appellant but outside the Inflight Service
Department, the respondents asked certain
questions about such
positions through their attorneys and they were furnished with
answers. They still did not apply. However, during
the
cross-examination of Mr Desai, it was established that in asking for
that information, the respondents were not bona fide because
they did
not intend to apply if they got the information they asked for. In my
view this was clearly established. The respondents
wanted to give the
appearance that they were genuinely interested in the information
that they were seeking for purposes of deciding
whether to apply or
not when in fact they had no intention of applying for such
positions.
[34] In his evidence Mr Kemp was
referred to that page of annexure “
SAA3
”
to his affidavit which had a new structure with him at the top and
asked to indicate the positions therein to which the respondents
could have been appointed. Annexure “
SAA3
”
was part of the new structure or organogram. Two of the positions
immediately below Mr Kemp’s position bore the number: 109.
The one
position was that of Operations Manager: Crew Management, the other,
that of Operations Manager: Crew Movement. Immediately
below them was
the level of “
Admin
Assist
”. One
level below that were, on the left hand side, four positions of Crew
Rank Manager and, on the right hand, side on the same
level, were
four positions of Manager: Operations Centre. There were also other
positions which it is unnecessary to deal with. I
have explained the
contents of part of annexure “
SAA3
”
in detail so as to facilitate an understanding of that part of Mr
Kemp’s evidence to which I now turn.
[35] Mr Kemp testified that one of
the respondents could have been appointed to one of the two positions
of either Operations Manager:
Crew Management or Operations Manager:
Crew Movement. He testified that some of the respondents could have
slotted in any of the
four positions of Crew Rank Manager. Mr Kemp
testified that the Crew Management side of the Inflight Service
Department was what
the respondents had been involved in before the
new structure. Mr Kemp said that, since there were only four of the
positions of
Crew Rank Manager, this meant that those positions would
not have been enough for the seven respondents but he said that the
respondents
who did not get appointed to those positions could have
been appointed to other positions. He had already pointed out that
one of
the respondents could have fitted into one of the two
positions immediately below his own position.
[36] Mr Kemp was asked what he
thought the respondents’ chances were of having been appointed to
the four positions of Crew Rank
Managers, the one of Operations
Manager: Crew Management and that of Operations Manager: Crew
Movement if they had applied for
those positions. This question was
put on the basis of the respondents’ skills, experience and other
qualities. That would be six
positions. Mr Kemp’s answer was: “
I
would say 90%, they had exposure better than anybody else
”.
He was then asked: “
So
they would have known how to do this new job as it were?”
He answered: “
Correct
”.
Later on Counsel for the appellant suggested to Mr Kemp that, in
accordance with his earlier evidence, the respondents would
have had
“
a 90% chance of
filling the vacancies had they applied for it (sic) because they
would have had this competency fit, is that right
?”
Mr Kemp answered:
“yes,
I mean obviously they have been doing the job, although not exactly
the same, just a bit different previously. So they would
be able, I
mean most of them would have fit the profile of the new position.”
However, Mr Kemp did say that the respondents would have had to take
“
some sort a test
”
– “
the interview
type of process determining…”
Mr Kemp testified that all the employees at Inflight Service
Department who applied for positions in the new structure were
appointed.
He said that the respondents were the only crew managers
who had decided not to apply and were, therefore, not appointed.
[37] Mr Kemp was asked whether there
were any changes in the new structure. It seems that this question
was directed at eliciting
information that would show whether such
changes as may have been effected in the various positions were
changes that would have
had the effect that the respondents’
previous jobs had completely or drastically or slightly changed. Mr
Kemp answered that there
were “
some
changes
” but that
they were not major changes. At another stage during his evidence Mr
Kemp testified that the respondents had the necessary
competence to
fill the new positions. Under cross-examination Mr Kemp confirmed
that the jobs which the respondents would have done
in the new
structure if they had applied and were appointed would have been
similar even if not the same as the jobs that they had
performed in
the old structure. He said that there would have been a slight
difference in the jobs. Mr Kemp went on to say that the
slight
difference would have been in the sense that “
it
[would have been] expected of them to manage one specific group of
people with subordinates assisting them in terms of management
to
manage those people. There was better management control. So yes from
that perspective it was different
.”
[38] Under cross-examination Mr Kemp
testified that what would have caused the respondents to lose their
jobs would have been their
failure to apply for positions in the new
structure or if they failed to meet the requirements of the specific
positions. Asked under
cross-examination why some employees had been
put on the new structure without being required to apply when the
respondents were
required to apply, Mr Kemp said that he could not
say why that distinction had been made as that had not been his
decision. The person
who had made that decision was not called to
testify and justify or explain this decision.
[39] Mr Kemp was asked by Counsel for
the respondent whether it would be correct to say that the
respondents had lost their jobs because
they had refused to apply for
positions in the new structure. Mr Kemp answered: “
That
is correct, they refused to participate in the process
.”
Later Mr Kemp said that they were dismissed because of restructuring.
Mr Kemp was asked to say for which operational requirements
the
respondents were dismissed. His answer was: “
Based
on the operational requirements was the jobs have changed and they
did not apply for jobs. A number of jobs have changed
.”
[40] Under cross-examination Mr Kemp
was again asked to identify the operational requirements for which
the respondents had been dismissed.
His answer was:
“Based
on the operational requirement was that the jobs have changed and
they did not apply for jobs.”
Mr
Basson was asked under cross-examination what the reason for the
respondents’ dismissal was
.
His answer was
:
“The reason for dismissal was that they did not participate in the
process. There was no proper consultation and no proposals
or
alternatives was forthcoming which did not leave the employer with
much else.”
Proceedings in the
Labour Court
[41] The respondents were aggrieved
by their dismissal which they felt was unfair. Naturally, the
appellant felt differently about
the fairness of its decision to
dismiss the respondents. A dispute then arose between the appellant
and the respondents about the
fairness or otherwise of the dismissal.
In due course the respondents referred the dispute to the Labour
Court for adjudication as
an unfair dismissal claim. Pillay J heard
the matter. She subsequently delivered a judgment in which she found
that the dismissal
was both procedurally and substantively unfair.
She declined to order the reinstatement of those of the respondents
who had sought
reinstatement and ordered that all the respondents be
paid certain amounts by way of compensation. Some of the respondents
had elected
not to seek reinstatement whereas others had sought
reinstatement. The amounts of compensation ordered to be paid
represented the
respondents’ remuneration for a period of twelve
months. The respondents who had sought reinstatement did not note a
cross-appeal
against the Labour Court’s refusal to order their
reinstatement. This appeal is, therefore, against the order that the
Labour
Court made in this matter.
The
appeal
The
procedural fairness or otherwise of the dismissal
[42] The appellant made the decision
to declare the respondents’ positions redundant before there could
be consultation with them.
This was procedurally wrong. To declare an
employee’s position redundant affects an employee’s rights and
interests in an adverse
manner. Accordingly, an employer is obliged
to consult with the incumbent of such a position before taking such a
decision. As a
general rule, when an employer contemplates declaring
an employee’s position redundant, it would also be contemplating
the dismissal
of such employee because, if no agreement is reached
with regard to an alternative position to which the employee could be
appointed,
dismissal would be bound to follow. If an employer
initiates a consultation with the employee or his union after having
already declared
such employee’s position redundant, the employee’s
position is already severely compromised and the consultation process
is undermined.
[43] Where an employer has declared
an employee’s position redundant without any prior consultation
with the affected employee(s)
and the employee rejects an attempt by
the employer to hold the consultation after such declaration on the
basis that any consultation
thereafter would be a sham or would be
unfair in the light of the declaration, the employee may, generally
speaking, be justified
in rejecting such consultation. (compare with
Nkomo & others v
Administrator, Natal & others (1991) 12 ILJ 521 (N) at 521 I –
528 A
which was in
respect of the audi alteram partem rule). However, this would depend
on the circumstances of each case.
[44] There may well be circumstances
where the consultation offered after the declaration is even fairer
than the consultation to
which such employee was entitled before the
declaration. In such a case, if the employee rejects an offer of such
consultation, and
a dismissal follows, the dismissal might not be
procedurally unfair. (See Semenya’s case, below). However, where
the employee agrees
to consult with the employer after the employer
has declared his position redundant prior to consultation, the
procedural fairness
or otherwise of any subsequent dismissal would
depend largely on what happens during the consultation process. The
initial unfairness
which would have taken the form of the declaration
of the employee’s post or position redundant without prior
consultation may
be cured if the consultation becomes successful or
if its ultimate failure has nothing to do with the initial unfairness
but results
from the conduct of the employee or his union during the
consultation process. Where, for example, the consultation begins but
fails
to reach finality as a result of blameworthy conduct on the
part of the employee or his trade union, the dismissal would be
procedurally
fair even though the consultation process may have
started on a wrong footing. However, there may be a situation where
the employer
goes through the motions of a consultation process to
try and cure the procedural defect which occurred when it declared
the employee’s
position redundant without prior consultation with
the employee. In such a case the subsequent dismissal may still be
procedurally
unfair because the employer participated in the
consultation process with no intention of reaching consensus with the
employee or
his trade union.
[45] In this case I am inclined to
accept Mr Desai’s version of what occurred in the meeting of the
22
nd
May in so far as he testified as to how he and his colleagues were
treated by Ms Isaacs when they asked certain questions. Effectively,
they were treated abusively by Ms Isaacs and told to go and consult
with Mr Kemp. I also accept Mr Desai’s version of what happened
at
the me
e
ting
that the respondents had with Mr Kemp immediately after Ms Isaacs’
presentation on the 22
nd
May. That evidence was in effect that they were also abused in that
meeting. This time it was by Mr Kemp.
[46] I also accept that at the
meeting of the 25
th
May the respondents did not find much joy. With regard to that
meeting the part of Mr Desai’s evidence that presents me with some
difficulty is where Mr Desai testified that Mr Kemp said that the
decisions that had been taken were irreversible. My difficulty
is
two-fold. The one would support the version that Mr Kemp did not make
that statement. The other one would support the version
of the
respondents that Mr Kemp did make such statement. The first is how
probable it is that, if Mr Kemp had made such a statement
at that
meeting, Mr Desai and the rest of the respondents would still have
continued to want to have a consultation with him. One
would have
thought that, if he had said such a thing, the respondents would have
adopted the attitude that there was no point in
having a consultation
with him because such decisions were irreversible. This reasoning
would support the appellant’s version.
The second is that a
statement such as the one which Mr Desai attributed to Mr Kemp might
be consistent with the behaviour of Ms
Isaacs at the meeting of the
22
nd
May and that of Mr Kemp on that day and on the 25
th
May. It might also be consistent with the attitude of the appellant
towards those who dared to question its decisions and how it
was
handling the restructuring as manifested in how Ms Isaacs and Mr Kemp
dealt with the respondents in terms of the administrative
leave as
well. However, it may be argued that such a statement is not
consistent with the letters which the appellant wrote to the
respondents in which it repeatedly invited them to make suggestions
on a number of issues. In this regard the letters of the 22
nd
May and the 7
th
June 2000 referred to earlier would be some of the relevant letters
in this regard. Indeed, for all intents and purposes, the appellant
had to coerce the respondents to attend the meeting of the 25
th
May so as to consult with them. The question would be why the
appellant took all this trouble if it did not want to consult with
the respondents or if its attitude was that its decisions were
irreversible.
[47] The only way in which one can
reconcile the respondents’ apparent continued desire to consult
with Mr Kemp with the latter
having previously made such a statement
would be if the position was that when, in their letters of the 29
th
,
30
th
May and 7 June 2000, the respondents expressed their willingness to
consult with Mr Kemp, they did not mean what they were saying
but
were simply saying that because they thought it would strengthen
their position in subsequent litigation if they were perceived
to
have wanted to be consulted. And that may well be the position
because under cross-examination it was discovered that, in asking
questions about vacancies outside the Inflight Service Department but
within the appellant which appeared to seek clarification so
that the
respondents could apply once clarification had been provided, the
respondents were shown not to have intended to apply for
appointment
to any positions but had simply been going through the motions. If
this is so, this would support the conclusion that
the dismissal was
procedurally fair. That is because the respondents’ case was not
that they refused to be consulted because the
appellant had stated
that it had made the relevant decisions and that such decisions were
irreversible but their case was that the
appellant did not consult
them and was not willing to or prepared to consult with them even
though they wanted to be consulted. Had
the respondents’ case been
that their dismissal was procedurally unfair because the appellant’s
offer to consult them was a sham
or because consultation was offered
after the decision to declare their positions redundant had already
been taken and they had,
because of that, rejected such an offer of
consultation, it might have been easier to conclude that Mr Kemp had
made such a statement.
However, since that was not their case and
their case was that at all times they wanted to be consulted, this
makes it difficult
to accept this aspect of their version.
[48] In their letter to Mr Kemp dated
29 May the respondents inter alia stated that they would like to be
consulted about the restructuring.
Mr Kemp said that in response to
this letter he made a handwritten note on the letter in which he
invited the respondents to make
an appointment through his secretary
so that he could meet and consult with them. Although Mr Desai denied
that the respondents had
been aware of that handwritten note, he was
caught out under cross-examination. His denial had been false. The
matter must be decided
on the basis that the respondents became aware
of the request that they contact Mr Kemp’s secretary to set up the
consultation
that they “
wanted
”
but they elected not to do so. Their election not to do so was
probably because they had never genuinely wanted a consultation
but
had hoped that Mr Kemp would refuse to consult with them and they
would use that to strengthen their case in subsequent litigation.
When an employer invites an employee or employees or his or their
trade union to consult and the employee(s) or the trade union either
rejects or ignores such invitation, or initially participates but
later abandons the process due to no fault of the employer, the
dismissal cannot be said to be procedurally unfair, if the employee
is subsequently dismissed without consultation
or without a
completed consultation process.
[49] The Court a quo also accepted
the appellant’s version that Mr Kemp made the handwritten note on
the respondents’ letter of
the 29
th
May inviting the latter to contact his secretary to make an
appointment for a consultation meeting. However, it seems that the
approach
taken by the Court a quo was that, if an employer starts a
consultation process off on a wrong footing, the employer “
cannot
hope to be rescued from its own illegality by securing the
participation of the [employees]”.
I
take a different view. A consultation process that may be defective
or flawed at the beginning may later on end up being a fair
consultation process depending on a number of things that may happen
along the way. For example, an employer who may have taken certain
decisions before there could be consultation with employees may
withdraw those decisions and thereafter prove to be completely open
-
minded in a subsequent consultation process that may be initiated
thereafter. (compare with
Semenya
and others v CCMA and others (2006) 27 ILJ 1627 (LAC)).
[50
] The
Court a quo went on to say that “
the
invitation to consult was not supported by any conduct to convince
the [respondents] that they [would] not be treated in the same
way as
they were treated between 22 May and 25 May
”.
In my view this consideration was not appropriate because it was not
the respondents’ case that, after they had been treated
the way
that they had been on the 22
nd
and 25
th
May, they were no longer prepared to take part in a consultation
process with the appellant’s management. The respondents’ case
was that at all material times they wanted a consultation with the
appellant. The fact that they said this in both their letters
of the
29
th
and
30
th
May is inconsistent with their having needed Mr Kemp to convince
them by his conduct that they would not be treated in the same
way as
they had been on the 22
nd
and 25
th
May. Their own conduct shows that they needed no convincing in order
to participate in a consultation process with the appellant.
The
consultation process could have taken place between the parties had
the respondents responded to Mr Kemp’s handwritten note
inviting
them to telephone his secretary. They did not do so and for that
reason they cannot be heard to complain that no consultation
was held
or that certain issues were not discussed which should have been
discussed at a consultation process.
[51] In my judgement the finding of
the Court a quo that the dismissal was procedurally unfair cannot be
sustained. I am of the view
that the dismissal was procedurally fair.
The next question for consideration is whether or not the dismissal
was for a fair reason
or, put differently, was substantively fair.
Was the dismissal of the respondents for a fair
reason?
[52] Sec 188(1) of the Labour
Relations Act, 1995 (Act 66 of 1995) (“
the
Act
”) provides,
inter alia, that a dismissal that is not automatically unfair is
unfair if the employer fails to prove that there was
a fair reason
for the dismissal. The question that now requires consideration in
this matter is whether the appellant proved that
there was a fair
reason for the dismissal and, therefore, their dismissal, of the
respondents.
[53] In this case it is common cause
that the respondents were not members of any trade union and that is
why the appellant had to
consult with them directly. It is also
common cause that the appellant had no agreement with the respondents
about what selection
criteria should be used in either declaring them
redundant or in selecting them for dismissal for operational
requirements. Accordingly,
the appellant had no choice but to use
selection criteria that were fair and objective in selecting them for
dismissal. (see
Chemical
Workers Industrial Union & others v Latex Surgical Products (Pty)
Ltd (2006) 27 ILJ 292 (LAC)
at par 83 - 88). If the selection criteria used did not meet this
requirement, their selection for dismissal and, therefore, their
dismissal would lack a fair reason.
[54] The respondents were informed on
the 22 May 2000 that their positions had been declared redundant.
They were invited to apply
for positions in the new structure. To
this end the appellant ring-fenced positions in the new structure
with the result that nobody
other than employees from the old
structure of the Inflight Service Department could be considered for
appointment until either all
the employees from the old structure who
met the required test were appointed or were found not to meet the
test. If some posts in
the new structure were not filled from the
pool of employees from the old structure because they were found not
to satisfy the best
competency fit test, then applications would be
invited from other SAA employees outside the Inflight Service
Department at that
stage. It was common cause that employees who were
not appointed to the positions in the new structure would then have
the opportunity
to apply for any vacant positions outside the
Inflight Service Department but within the appellant. It is common
cause that the respondents
refused to apply for positions in the new
structure. They also did not apply for appointment to any positions
outside the Inflight
Service Department but within the appellant.
[55] During his evidence Mr Kemp
testified that there were 90% chances that, if the respondents had
applied, they would have satisfied
the best competency fit test and
would have been appointed to certain positions in the new structure.
His evidence was also for all
intents and purposes to the effect that
the respondents were competent or would have been competent to
perform the duties of certain
positions in the new structure. He said
that there was only a slight difference between some of the positions
in the new structure
and the positions previously held by the
respondents in the old structure. Mr Basson’s evidence was either
to the same effect or
was certainly not to the effect that there were
no positions for which the respondents would have been suitable in
the new structure.
[56] All in all the factual position
is that the appellant dismissed the respondents for alleged
operational requirements at a time
when it had vacancies which
entailed work which the respondents could perform with or without
minimal training. The appellant’s
defence was that the respondents
had refused to apply for positions and, if they had applied, they
would probably have been appointed.
This defence supports the
respondents’ case rather than that of the appellant. This is so
because, if the respondents would probably
have been appointed to
positions in the new structure if they had applied because they had
about 90% chances of being appointed,
that was a good enough reason
for the appellant to have appointed them to those positions. If they
were offered those positions
and, despite whatever support or
training they may have needed, and were given, they failed to do the
work satisfactorily, the appellant
could have dealt with their
unsatisfactory or poor performance in terms of the law and procedure
applicable to unsatisfactory or
poor performance. If the appellant
dealt with such issue in terms of such law and procedures but the
respondents still failed to
perform to the required standard it could
have been a fair reason to dismiss them once the relevant procedure
had been followed.
Of course, the appellant says: but they refused to
apply? What, says the appellant, was I supposed to do if they were
not prepared
to apply?
[57] In my judgement the appellant’s
requirement that employees should apply for appointment to the
positions in the new structure
was effectively part of a process used
to select the employees who would remain in the appellant’s employ
and those who would be
dismissed for operational requirements. The
appellant required the respondents to apply for positions in the new
structure so that
it could, by the use of the so-called best
competency fit test, decide whether they would remain in the Inflight
Service Department
or whether they would be dismissed, subject to
whether they got appointed to other vacant positions outside the
Inflight Service
Department but within the appellant. The respondents
refused to apply for what they referred to as their old positions. It
is important
to make the point that the appellant has failed to
justify its decision to require some employees to apply when it
appointed others
without requiring them to apply. In this regard both
Mr Kemp and Mr Basson testified that it was Ms Isaacs’ decision to
appoint
some of the managers without requiring them to apply while
others were required to apply. Ms Isaacs was not called to give
evidence
to justify her decision. Mr Desai testified that part of the
reason why the respondents refused to apply was because of this
inconsistency
of treatment on the appellant’s part.
[58] The best that Mr Kemp was able
to say to try and explain or justify the appellant’s requirement
that the respondents and other
employees apply for positions in the
new structure was that it would have been unfair on some of the
employees to just appoint some
without allowing all to compete for
positions. There are two answers to this evidence. The first answer
is that that is precisely
the respondents’ complaint because they
ask: why was it fine for some to be appointed to positions without
being required to apply
for such positions while they and others were
being required to apply for positions? As I have said, the appellant
has failed to
provide an explanation for its inconsistency in
treating its employees in this regard. Accordingly, this matter must
be decided on
the basis that there was no justification for the
appellant to require the respondents and other employees to apply for
positions
when others were not being subjected to such requirement.
This means that in insisting on this requirement the appellant acted
in
breach of the parity principle. That is the principle that an
employer should treat its employees equally or consistently when they
are in the same circumstances unless there is justification to
differentiate between them.
[59] The
second answer to Mr Kemp’s evidence in this regard is that fairness
could have been achieved by relying on LIFO as part
of the selection
criteria. In such a case preference for appointment to positions
would have been given to those employees with longer
service periods
than to those with shorter service periods whenever there were two or
more employees who could do a particular job
with or without some
training. LIFO is an objective selection criterion and is
well-established in our law of retrenchment. Accordingly,
it is no
answer to the respondents’ unfair dismissal claim to say that they
refused to apply because the requirement that they
apply for
positions in the new structure has not been shown to have been
necessary or justified.
[60] The question which arises is
what the obligation of an employer is in relation to the dismissal of
employees for operational
requirements when it does away with an old
structure and adopts a new structure (for operational requirements).
An employer has an
obligation to try and avoid the dismissal of an
employee for operational requirements. This obligation entails that
an employer may
not dismiss an employee for operational requirements
when such employer has a vacant position the duties of which the
employee concerned
can perform with or without at least minimal
training. This Court affirmed this principle in its decision in
General Foods
Industries Ltd t/a Blue Ribbon Bakers v FAWU & others (2004) 25
ILJ 1655 (LAC)
and
in its as yet unreported decision in
Oosthuizen
v Telkom SA Ltd
case no PA5/04 handed down on 29 June 2007. Where the employer has a
vacancy and the employee can perform the duties attached to
that
vacancy, the employer would be acting unfairly in dismissing the
employee without offering the employee such a position and
the
ensuing dismissal would be without a fair reason. Where, however, the
employer offers the employee such a vacant position and
the employee,
having accepted the offer, fails to perform the duties attached to
that position satisfactorily, the employer can deal
with the case as
a case of poor performance.
[61] An employer should, generally
speaking, not use procedures relating to dismissal for operational
requirements to solve problems
relating to poor work performance of
its employees. There is a reason why there are different procedures
for the different permissible
reasons for dismissal. There is a
procedure applicable to dismissal for misconduct. There is a
different procedure applicable to
dismissals for incapacity. There is
yet a different procedure applicable to dismissals based on the
employer’s operational requirements.
Where an employer wants to
have an employee dismissed because he has done something unacceptable
to him - which should be dealt with
through disciplinary procedures,
it is unacceptable for the employer to use retrenchment to get rid of
such employee because he knows
that whatever the employee has done
wrong would not constitute a fair reason to dismiss him on
disciplinary grounds. Equally it would
not be acceptable for an
employer to dismiss an employee for misconduct to avoid having to pay
such employee severance pay upon retrenchment
when there is no fair
reason to dismiss the employee on disciplinary grounds.
[62] In the light of the above I
conclude that the appellant had no justification for its insistence
that the respondents and other
employees apply for positions in the
In Flight Service Department. Just as it had appointed some of the
managers to positions in
the new structure without requiring them to
apply, it could also have appointed the respondents to positions in
the new structure
without requiring them to apply. As to which
employees could have been appointed to which positions, it was clear
from Mr Kemp’s
evidence that there were positions which the
respondents could have been appointed to if they had applied. Mr Kemp
was able to say
this because, as the respondents’ immediate
superior, he knew their abilities, skills and length of experience.
He was one person
who knew them very well.
[63] If there were more employees
than there were positions, the appellant could have and should have
used fair and objective selection
criteria, including LIFO, to select
those employees who would be kept in its employment by being
appointed to certain positions and
those who would not be appointed
and would ultimately be dismissed unless they were appointed to other
positions outside the department
but within the appellant.
[64] The appellant’s dismissal of
the respondents is unfair for lack of a fair reason to dismiss
because it is in breach of the
principle of our law of retrenchment
that says that, as dismissal for operational requirements is a no
fault termination, an employer
may not dismiss an employee on the
basis that his position is redundant if he has another position which
such employee may occupy
or has other work which such employee may
perform without additional training, or, if training is needed,
without minimal training.
(see the decision of this Court in
Oosthuizen v Telkom
SA Ltd
, supra). It
is clear from Mr Kemp’s evidence that, when the appellant dismissed
the respondents, it still had work which they could
do or had
positions which they could have been appointed to without any need
for any training. Accordingly, the Court a quo’s decision
that the
respondents’ dismissal was substantively unfair is, for these
reasons, fully justified and must be upheld.
Relief
[65] With
regard to relief there was no cross-appeal against the Court a quo’s
decision refusing to grant an order of reinstatement
to those of the
respondents who had sought reinstatement. For that reason I shall say
nothing about the Court a quo’s decision
declining to order
reinstatement and its reasons therefor. The finding that the
dismissal was substantively unfair is capable of
sustaining the order
of compensation that was made by the Court a quo. If an employee’s
dismissal lacks a fair reason – which
means that it is
substantively unfair – the primary remedy in our law is
reinstatement. Reinstatement may be denied only in limited
circumstances which are set out in sec 193 of the Act. In those cases
where reinstatement is denied, compensation would normally
be
granted. It would be a rare case, indeed, where a court would find
that an employee whose dismissal is without a fair reason should
get
neither reinstatement nor compensation. I am satisfied that, once the
respondents were not granted reinstatement, it was fair
that they be
awarded the compensation that the Court a quo awarded them.
[66] In the light of all the above I
am of the opinion that the appellant’s appeal must fail.
Costs
[67] With regard to costs I am of the
view that the requirements of the law and fairness dictate that the
appellant should pay the
respondents’ costs.
[68] In the premises the appeal is
dismissed with costs.
Zondo JP
I agree.
McCall AJA
I agree.
Kruger AJA
On behalf of appellant: Adv. T.
Motau
Instructed by:
Nalane Manaka Inc.
SAXONWOLD
On behalf of the respondents: Mr.
G.N Moshoana
Instructed by:
Mohlaba
and Moshoana Inc.
BRAAMFONTEIN
Date of judgment:
3
August 2007