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[2007] ZALAC 36
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Mine Workers Solidarity Union on behalf of McGregor v South African National Parks (CA 75/05) [2007] ZALAC 36 (11 December 2007)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT BRAAMFONTEIN, JOHANNESBURG)
Case
no: CA 75/05
In
the matter between:
MINE
WORKERS SOLIDARITY’ UNION
ON
BEHALF OF
IAN
MURRAY MACGREGOR
.........................................
Appellant
and
SOUTH
AFRICAN
NATIONAL
PARKS
...................................................
Respondent
Judgment
Tlaletsi
AJA,
Introduction
1.
Mr Ian Murray Macgregor (hereinafter referred to as the employee),
who was in the respondent’s employ was dismissed by
the
respondent with effect from 31 July 2001 for operational
requirements. The appellant disputed the fairness of his dismissal
and contended that the dismissal was both substantively and
procedurally unfair. The respondent maintained that the dismissal was
fair both procedurally and substantively. A dispute arose between the
two parties about the fairness or otherwise of the dismissal.
2.
The dispute was ultimately referred to the Labour Court for
adjudication. The Labour Court, per Ravelas J, found that the
dismissal
was both substantively and procedurally fair and made an
order on 20 May 2005 dismissing the appellant’s claim. Full
written
reasons for the order were made available on 7 November 2005.
The Labour Court subsequently gave leave to appeal. This is an appeal
from that order of the Labour Court. The appeal is opposed.
The
facts
3.
In the Labour Court
,
Mr J Smal, the respondent’s
Director: Human Resources, Mr Hector Magome, the Executive Director:
Conservation Services and
Dr Peter Alexander Novellie, the
Co-ordinator: Conservation Services who was the employee’s
direct supervisor, gave evidence
on behalf of the respondent. The
appellant testified on his own behalf and did not call any witnesses.
4.
The respondent is a national organization which at the relevant time
was managing twenty national parks within the republic.
Its main
business is that of nature conservation. The employee was employed by
the respondent with effect from 10 March 1996 in
the position of
Manager: Environmental Policy. He was appointed pursuant to an
independent audit on the technical capacity of the
respondent. That
audit had been done in 1996 by an international consultant, H.
Eidsvik. His report is commonly referred to as
the Eidsvick Report.
The report recommended that the environmental capacity of the
respondent be addressed urgently. Prior to his
employment by the
respondent, the employee had been employed in the mining sector. The
respondent employed him because of his unique
qualifications and
experience in mining and environmental science. The employee regarded
himself as one of few persons with overarching
knowledge of mining
and environmental science.
5.
Magome, who was the head of the department in which the employee was
employed, commenced employment with the respondent on 21
February
1996 in the position of General Manager responsible for the Parks
Planning and Development Department. He was later appointed
as Head
of Social Ecology. From 1 September 2000 he was promoted to the
position of Executive Director of the Department of Conservation
Services which was a new department.
6.
The main function of the employee as Manager: Environmental Policy
was to design general environmental policy guidelines for
the
National Parks Board with respect to Integrated Environmental
Management (IEM), Environmental Management Systems (EMS),
Environmental
Impact Assessment (EIA) and Environmental Auditing
(EA). He was also to facilitate the execution of relevant procedures
in accordance
with policy guidelines for both existing and developing
parks. Furthermore, he was also a spokesperson for the respondent on
environmental
issues and attended meetings at Ministerial level.
During 1997 his job description was realigned so that he could deal
with the
Environmental Impact Assessments in compliance with some new
regulations. He testified that during the duration of his employment
at the respondent his duties were hampered by insufficient personnel
in his unit. He said that, as a result of this, he could not
fully
comply with legislative requirements. He said that he brought this to
the attention of senior management but nothing was
done about it.
7.
During September 2000 there was restructuring within the respondent.
This resulted in a merger between the Social Ecology Department
and
the Conservation and Development Department. The resultant department
was called the Conservation Services. The new department’s
primary function was to service the respondent and its 20 national
parks all over the country.
8.
Magome convened a workshop for the staff during October 2000. The
workshop was attended by various heads of sections who reported
to
him. It was chaired by the chairperson of the Conservation Committee.
The reason for the latter to chair the workshop was to
enable free
participation by all employees in addressing the needs of the
department. The Chairperson of the Committee was regarded
as an
independent person for this purpose.
9.
The organogram that was in place at the time when Magome took over
had the positions of General Manager: Scientific Services,
General
Manager: Park Policy Development (which was the position to which
Magome was appointed when he joined the respondent),
General Manager:
Social Services (which was the new position of social ecology after
the departments had merged) General Manager:
Air Services and
Manager: Environmental Policy. The last mentioned position was
occupied by the employee since 1996.
10.
The employee also made a presentation at the workshop. An agreement
was reached in the workshop on key functions to be carried
out by the
Conservation Services. These were park planning and development,
acquisition of new land to expand the national parks
system and
lastly, research and the monitoring of the different eco-systems
within the parks.
11.
Various heads of the units, including the employee, presented various
models of organograms for the department as suggestions
for
consideration. The model that was presented by the employee was for
the creation of a unit to be called General Manager: Environmental
Services. He was proposing to have a secretary, an administration
clerk and three environmental co-ordinators for Kruger Park,
Cape
Peninsula and other parks respectively. This model was seen as an
upgraded version of the position occupied by the employee.
The model,
was not accepted in the workshop.
12.
In the workshop there was agreement on broad strategies as well as
the functions of directorates within the department. It was
agreed
that the General Manager: Scientific Service operate as a support
unit for the department and remain in the organisation
at head
office. It would also be responsible for other scientific service
functions throughout the organisation. The position of
General
Manager: Air Services became redundant and the incumbent took a
severance package. The position of General Manager: Park
Planning and
Development was regarded as important and was retained though it was
vacant at the time. The position of General Manager:
Social Ecology
was also confirmed and retained at that level. The position of
Manager: Environmental policy occupied by the employee
was not
confirmed. This meant, that if the new structure was adopted and
implemented, the employee’s position would no longer
exist.
13.
The employee’s position of Manager: Environmental Policy had
three components. These were Environmental Impact Assessment
(EIA),
Environmental Policy (EP) and Environmental Management Systems (EMS).
Heads of units felt that the employee focused exclusively
or mainly
on Environmental Impact Assessment. According to Magome the function
that the organisation required most was EMS as it
would put systems
in place to assess whether the organisation was complying with
environmental requirements. At the time the respondent
did not have a
system in place to do that and, as a result, it was difficult to
determine whether the organisation was performing
well or badly
environmentally.
14.
The heads of units believed that an environmental impact assessment
did not require a full time position within the respondent.
Their
opinion was that it was supposed to be an independent function
performed by external service providers so that it could reflect
an
independent and objective assessment of their activities and to avoid
the respondent and the parks being ‘judge in their
own cause’.
Magome also believed that it would be cost-effective if the
environmental impact assessment was done by consultants
as the
respondent would not have to carry the administrative costs
associated with producing the reports.
15.
The employee also believed that in terms of the environmental
legislation, environmental impact assessment had to be performed
by
independent people and this meant that this position had to be based
at head office and be independent of the Parks as well
as the
Conservation Services Department. He accepted that an Environmental
Management System was lacking in the respondent which
was also an
important function. It is for this reason that the employee had
previously requested increased capacity from senior
management. This
request was also made at the workshop. He disputed that it was
cheaper to outsource EIA to consultants because,
in his view,
consultants were by far too expensive and that he could in addition
do other peripheral functions which were also
of importance.
16.
It is common cause that there were several meetings between October
and December 2000 between Magome and the employee regarding
the issue
of focusing on EMS. The employee maintained that Magome had no clue
of what his major function was all about and continued
to focus on
EIA. He regarded the situation as a professional disagreement and,
for that reason, he requested that the respondent
commission an audit
by someone totally independent to look at the situation and advise
the respondent accordingly. He believed
that his functions had been
created by way of an international audit and were, therefore, unique
and important.
17.
In the meantime the position of General Manager: Park Planning which
had been vacant was advertised during October 2000. The
employee
testified that he applied for this position towards the end of the
closing period. Both Magome and Smal, testified that
they had no
knowledge of his application. However, Magome noted that the letter
of application produced by the employee was not
addressed in
accordance with the requirements of the advertisement, but was
addressed to the Director of Conservation Services
and that the
employee also indicated that his application was provisional. The
employee also indicated in the application that
he believed that he
did not require any formal introduction and that he would submit his
Curriculum Vitae upon request. As suitable
candidates from among
those who applied for the post could not be found the position was
later left vacant. Magome testified that
this position was higher
than the one that the employee occupied at the time but that the
employee was suitably qualified to ‘deal’
with it.
18.
About the end of 2000 or the beginning of 2001, the Kruger National
Park experienced major floods. Roads, bridges and chalets
were
destroyed. This park is the central pillar that holds the survival of
the respondent and was at the time providing close to
70% of the
income required by the respondent. It employed about 3 000 employees.
As a result of this disaster, the respondent experienced
a serious
financial difficulty. The government had also previously stopped
funding the Kruger National Park through road grants.
19.
During January 2001 the respondent’s then Chief Executive
Officer, who was on sick leave, called all the executive heads
of the
departments to his residence for a meeting. The appellant also
attended that meeting. The critical financial situation of
the
respondent was discussed. The heads were instructed to come up with
plans to ensure that the organisation was going to survive.
A
decision was taken to cut down on expenditure. A moratorium was put
on employing permanent staff as well as consultants. Other
interventions agreed upon were to put a moratorium on overtime,
training for the specific year and staff travelling. The staff
compliment throughout the organisation was to be reviewed. Each Head
of Department or Director through his/her management team
had to
revisit the structure of his or her department and ascertain whether
the positions in the department could be justified
and whether there
was a possibility of combining certain functions and also the
elimination of duplication of certain functions
and redeployment of
other officials. The entire remedial action was code-named “
Operation
Prevail”
.
20.
On 9 February 2001 the Chief Executive Officer addressed the entire
staff on the respondent’s financial position and the
need to
take certain remedial steps. The employees in Cape Town and other
staff viewed the address on television. The employees
at centres
where there was no television connection were addressed through
recorded video tapes and an abridged copy of the speech
was also
circulated. During his address the Chief Executive Officer requested
employees to submit suggestions as to how the situation
could be
improved. He said that, if need be, there could be submitted directly
to him.
21.
A letter by the Chief Executive Officer outlining the key objectives
of Operation Prevail was issued to the staff. It was expected
that
each single director would go to his/her department to review all
positions and take the necessary steps to meet the overall
objectives
of making sure that the organisation would “prevail”.
There was to be a consultative process and the expectation
was that
the exercise would be finalised by 31
st
March 2001. In the
process about 660 posts became redundant. The total included posts
that were not yet filled.
22.
According to Magome he had already started re-looking at his own
department as far back as October 2000 and, when Operation
Prevail
was introduced, he simply had to speed up the process. After 31 March
2001 two consultation meetings were held between
Magome and the
employee. In the first meeting Magome informed the employee that the
function of EIA was no longer required within
the organisation and
that the function required to be performed were those of EMS and EP.
He said that these two functions, which
were a part of the employee’s
job functions had been neglected. The employee was not prepared to
stop the EIA as required.
21.
In the second consultation meeting the employee was requested to come
up with suggestions as to how best the EIA function could
be
accommodated without being seen as part of the respondent and
therefore not objectively independent. The employee insisted on
having the audit done and stated that he believed that his position
had to be retained within the respondent but independent of
Department of Conservation Services as he had previously suggested.
The dates of the two meetings have not been provided. In response
to
the statement of claim the appellant has not denied an allegation
that these two meetings were held. The employee also did not
dispute
in his evidence that these meetings took place.
22.
On 15 May 2001 a meeting of the Board of the respondent was held.
After the meeting Magome met the employee and told him that
he had
bad and good news for him. He told him that the good news was that
the audit had been approved. Magome explained that in
this regard he
was referring to the State of the Environment Audit Report. He was
not referring to the audit that the employee
had suggested. For the
latter audit the employee had already worked out terms of reference
and it was estimated that it would cost
in the region of R100 000.00.
Magome testified that he abandoned this suggestion when Operation
Prevail set in. He said that he
was no longer going to allow
consultants to come and dictate to him and the respondent on what
functions the employee was to carry
out and at what level. He also
expressed the view that such an audit would also be contrary to cost
savings objectives.
23.
What Magome referred to as the bad news was a letter dated 17 May
2001 from Johan Van der Merwe, the respondent’s Director
of
Parks. The letter was addressed to Magome. In this letter it was
stated,
inter alia,
that the Parks Department would not be
requiring the services of Conservation Services with regard to the
environmental management
in general, and EIA’s in particular.
The letter further stated that the park managers would be responsible
for the EIA process
pertaining to the development in their parks, and
that all future visits by the employee to the parks would have to be
cleared
with Van der Merwe and the respective park manager as to the
exact nature and purpose of such visit to avoid confusion. The
employee
testified that this letter effectively nullified his
position and that it was in contravention of the provisions of the
EIA Regulations
with regard to independence by involving park
managers in EIA processes. The letter also made reference to the
Directorate’s
decision on 15 May 2001. The letter did not
provide further details of the decision taken at this meeting. Magome
was also not
asked any the details regarding this decision, except
what he told the employee about the good and the bad news on his
return from
the board meeting.
24.
On 5 June 2001 the employee was handed a letter in terms of Sec
189(3) of the
Labour Relations Act, 1995
(Act 66 of 1995)
(“the Act”) dated 29 May 2001 declaring his position as
redundant. The letter was written by Magome
but was delivered by Dr
Novellie to the employee. The first paragraph of the letter stated
that:
“
As
you are aware, SANParks has embarked on an intensive programme to
scale down on certain of its operational functions in order
to reduce
operational expenses and to improve its overall efficiency. The first
phase of this exercise which was announced by the
Chief Executive in
his address on 09 February 2001 affected head Office and the Regional
Office in Cape Town”.
The
letter further stated:
“
SANParks
has consulted with organised labour in order to minimise the effect
of this action on employees and to ensure that the
Organisation’s
operational requirements are met. In the light of the above, we
regrettably have to inform you that your position
has been declared
redundant and you may be retrenched, should no viable alternatives be
found. This is due to our contention that
the functions, which you
are currently performing, will no longer be operationally required.
Should you not become successful in
any of the advertised positions,
your services will be terminated with effect from 30 June 2001, with
July being paid in lieu of
notice”
25.
The appellant testified that when Dr Novellie handed him the
redundancy letter, he, (Dr Novellie) appeared shocked and not to
know
what was going on. Dr Novellie’s evidence on this aspect is
that he was not shocked at the declaration of the appellant’s
position as being redundant. He said that he was not party to that
decision which was made at director level. He said that he was,
however, fully aware that a process was in place to restructure and
that an effort was being made to find a solution to certain
difficulties that the employee was experiencing in his position
within the environmental services function.
26.
The employee testified that he went to see the director of human
resources on 6 June 2001 who referred him back to Magome after
remarking that there was possibly no compliance with procedures in
the respondent’s declaration of his position as redundant.
In
his evidence Smal confirmed that the employee came to him with the
letter stating that he was shocked and that he was not consulted
and
that he then advised him to take it up with his director because
there had to be a consultation process. Smal denied that he
was the
one who suggested that there had been no consultation with the
employee.
27.
The employee forwarded a memorandum to Magome dated 7 June 2001 to
Magome. In the memorandum the employee recorded,
inter alia,
certain historical facts relating to his appointment, the
difficulties he had encountered in implementing various environmental
management practices and his assumption that his position and others
within the Department of Conservation services would not be
affected.
He concluded thus:
“
With
the above in mind the sudden declaration of my position as redundant
comes as a “bolt out of the blue” and the
statement of
the fact that it is the SANP “contention that the functions,
which you (I) are currently performing, will no
longer be
operationally required” is some what puzzling to say the least
as is the timing of this declaration. I would therefore
respectfully
request a detailed written explanation for this sudden action to
afford me the opportunity of possibly understanding
the reason for
this action and giving me the opportunity of discussing the matter
with you at your earliest convenience”.
28.
On 8 June 2001 Magome went to see the employee in his office after
the Conservation Services meeting as he had promised the
employee
earlier that morning. The appellant asked Magome why he had made him
redundant and he replied that “they”
had redefined his
position and they were now going to concentrate on EMS only. He also
said that he would revisit the employee’s
job description and
that the latter’s function would entail new job description
reuiring to concentration on EMS. He is also
said to have undertaken
to do it over the weekend and promised to give it to the employee
during the course of the following week,
which never happened. The
employee testified further that he asked Magome whether he would get
the job and if it was on the same
grading. He testified that Magome
answered in the affirmative to the both questions. However, the
employee said that instead of
getting the job, the position was
advertised. This evidence was not put to Magome during
cross-examination and his version on this
aspect is only as reflected
in the correspondence.
29.
On 14 June 2001 Magome responded to the memorandum of 7 June 2001. In
his response he stated,
inter alia
, that:
“
I
was appointed to this position on 1 September 2000 and in October
2000 we had a departmental workshop which drafted a new vision
and
strategies for CS. It became apparent from the workshop that the
focus of the Environmental Services function that you perform
had to
be substantially refocused to concentrate on developing Environmental
Management System (EMS) for SANParks. Your previous
focus on
Environmental Impact Assessments (EIAs) a completely independent
function was no longer required in CS. Despite this,
you have always
shown me piles and piles of documentation on outstanding EIAs in
National Parks (NPs) to try and convince me otherwise.
Logically, I
had to wait for our two operational directors, Messrs. David Mabunda
and Johann van der merwe, to complete restructuring
of their
functions. They have independently concluded that the credibility of
EIAs can only be maintained by engaging the services
of external
consultants. As a result, some EIA functions in NPs were declared
redundant. This exercise completed by the middle
of May 2001
precipitated the letter declaring your position redundant. The letter
only formalised months and months of my insistence
that you dump
EIA’s for the much required EMS.”
In
the Memorandum Magome confirmed further that the respondent was
desperately in need of an EMS and that the Directorate approved
that
an Independent Environment Audit be conducted as a matter of urgency.
He concluded thus:
“
I
informed you of this decision a month ago and even showed you
confirmation of funding from the Ford Foundation for EA. I asked
you
to obtain two additional quotations for EA, but you have not (in my
opinion) attached the same significance to the EMS and
the EA as I
do. I have now drafted the advertisement of the Environmental
Services function which will focus on developing an EMS
that will in
time lead to an Environmental Management Policy (EMP). I will indeed
have an acceptable EMP by the Johanesburg 2002
Earth Summit.”
30.
On 18 June 2001 the employee wrote to Dr Novellie who was in charge
of the department in the temporary absence of Magome. In
the letter
he gave the historical background as to how the environmental
management function within the respondent came about and
its
importance. He expressed his concerns about the declaration of his
position as redundant and what alternatives were available.
He
recorded that he was participating in various committees and
structures representing various constituencies within the
environmental
field. He wanted to know what he should do about the
meetings he had already scheduled. He finally requested that major
decisions
and the restructuring process be deferred pending the
outcome of the audit that he had requested.
31.
Dr Novellie responded by way of a letter dated 20 June 2001 and
advised the employee that he was not party to the decision to
declare
his position redundant and could not add anything to the discussions
he had already had with Magome. He further advised
him to cancel the
scheduled meetings and that the position of Manager: EMS was to be
advertised shortly and, to his knowledge,
it represented the
“
alternatives
” under consideration. He advised
that all the parks were represented at the meetings at which the
future of Environmental
Services was decided and were aware of their
obligations in terms of the Regulations and will take steps to deal
with their own
EIA matters.
32.
On 22 June 2001 the position of Manager: EMS was advertised
internally with the closing date being 29 June 2001. On 27 June
2001
the employee wrote to Smal requesting all the details pertaining to
the advertised position. These details were provided by
Smal. On 28
June 2001 the employee wrote an urgent five pages memorandum to Smal,
inter alia, confirming the previous discussions
and correspondence
relating to the declaration of his position as redundant. He
confirmed his commitment to the respondent, and
listed his functions
in accordance with his job description and requested to know what
would happen to his functions. He further
challenged the
advertisement of the position of Manager: EMS if his functions were
said to be redundant. He also demanded full
reasons for the
declaration of his position as redundant. He stated that there had
not been compliance with sec 189 of the Act.
He referred to
historical problems that he had experienced in his unit as well as
the audit he had long requested. He demanded
a response by 12 noon on
29 June 2001. He sent a copy of the memorandum to Dr Novellie.
33.
On 29 June 2001 Magome replied to the letter. He contended
, inter
alia,
that the respondent had complied with sec 189 of the Act.
He also set out the reasons why the employee’s position had
been
declared redundant which he said had been after various meetings
and discussions. The employee was further advised that, if he was
interested in remaining within the respondent, the position of EMS
would represent an alternative. He was further invited to propose
any
other alternatives. The memorandum dealt with other specific matters
raised by the employee in his memorandum of 28 June 2001.
34.
On 29 June 2001, the employee wrote to Dr Novellie informing him that
he was applying for the position of Manager: EMS as advertised
under
protest
and that all his rights were reserved. He further stated
that he did not include his Curriculum Vitae as he believed that his
expertise
was well known within the organisation but, would avail it,
if necessary. On the same date Dr Novellie wrote to the employee
advising
him that his position would not be prejudiced by the fact
that his application was received late. This was in response to a
handwritten
note by the employee requesting this assurance.
35.
On 3 July 2001 the employee wrote to Dr Novellie attaching five
proposals relating to an independent audit of the environmental
management function within the respondent and suggesting that a
consultant be appointed as a matter of urgency. On 6 July 2001
Magome
replied and advised the employee that the responsibility to “action”
the audit rested with his office and he
would conduct the audit when
he returned from leave. He further advised that there was no link
between the audit and the declaration
of his position as redundant.
He further recorded as he had already informed him in his letter
dated 29 June 2001, that the prerogative
to assign functions to
employees rested with the respondent and not with consultants.
36.
On 13 July 2001 the employee wrote to Magome and continued to
challenge the declaration of his position as redundant and stated,
in
part:
“
1.
In my correspondence of 28 /06/2001 under point S.4 I requested
details of all alternatives including the possibility of a
contractual
position as raised on various occasions by yourself and
mentioned to Dr Novellie. These have not been adequately addressed in
your
correspondence of 29/06/2001. Towards the end of last year you
mentioned in passing the possibility of outsourcing the environmental
management function including EIA’s and if I would consider
accepting this on a contract basis. Is this option still regarded
as
an alternative?”
He
further referred to other alternatives that included retaining the
unit without any changes and employing additional staff and
consultants to perform some of the functions. He expressed the view
that the declaration of his position as redundant was misguided
and
not properly thought out. On 16 July 2001 the employee wrote to Dr
Novellie applying for the position of Manager: EMS “
under
protest
and reserving his rights with regard to the
declaration
of his position as redundant”
and that he was only applying
to preserve employment for himself and to ensure that he continued to
receive income. He further
recorded that by applying he did not
concede or accept that his application condoned or accepted any
action by respondent which
might or did prejudice his rights relating
to his retrenchment. He further stated that with the information
available he enjoyed
the status of a retrenchee for the purpose of
assessing his situation in comparison to other applicants for the
position.
37.
It is common cause that on 20 July 2001 there was a meeting between
the appellant, Magome, Smal and Dr Novellie. The meeting
discussed
the reasons for redundancy, the alternatives such as consulting, and
the position of Manager: EMS and the audit.
38.
It is common cause that on 23 July 2001 there was a meeting between
Magome, Smal, Novellie and the employee. Subsquent to the
meeting,
employee’s Magome responded to the letter dated 13 July 2001
dealing with proposed alternatives. The first two paragraphs,
which
are, in my view, of importance to this matter, read thus:
“
Thank
you
for your response, dated 13 July, to my invitation to submit
alternatives for consideration. What follows is a summary of our
meeting earlier today with Jan Smal and Peter Novellie during which I
gave a verbal response to the alternatives in your letter
of 13 July.
The numbered points below correspond with the points in your letter.
1.
The possibility of a contractual position?
This
is indeed a possible alternative. The offer is for SANParks to pay
you a monthly retainer (the exact sum to be negotiated)
up until the
end of the current financial year (31 March 2002). The details of the
arrangement are open to discussion and we invite
proposals from your
side. Provisionally we envisage that in return for the retainer you
will perform specified tasks during a certain
work period each month
(the tasks and the duration of the work period decided mutually
between yourself and the Director: Conservation
Services). The tasks
could be anything that is in the interests of SANParks in the general
field of environmental impact assessment,
whether this relates to
external or internal development projects or peripheral threats.
Outside the specified work period you
would be at liberty to conduct
private work, or to undertake work for organisations other than
SANParks. Depending on needs and
subject to mutual agreement,
SANParks could engage you to do certain additional projects out of
work period specified in terms
of the retainer, for which you would
be paid an additional fee. The arrangement will be reviewed in March
2002. Provided it is
acceptable mutually to yourself and SANParks,
the arrangement, or variant thereof, could be extended. However,
there will initially
be no commitment from either party beyond 31
March 2002. Should you choose this option, the benefits of a
severance package will
apply.”
Magome
went on to state that the other options from the employee relating to
employment of additional staff and or consultants would
not be
viable. This left the employee with either entering into a
consultancy agreement with the respondent or letting his application
for Manager: EMS be considered. However, in the letter Magome warned
the employee that the respondent
could not consider
his
application of 16 July 2001 submitted “
under protest”
as the respondent required full commitment from the incumbent of a
permanent position. Magome concluded the letter by stating that:
“
if
you insist that we have unjustly made your previous position
redundant, and intend to pursue actions against SANParks in this
regard, it will be difficult to consider you for the alternative
position of EMS manager. Should you wish to be considered for
this
position we strongly recommend that you re-apply, with no conditions
attached, by 26 July.”
39.
On 27 July 2001 a meeting was held between the employee and Dr
Novellie in connection with the employee’s redundancy.
In this
meeting the employee requested more information on the contractual
option and raised his concern at the short duration
of the proposed
contractual agreement and he suggested that it should rather run for
the same duration as other consultancy contracts
relating to other
outsourced functions. The duration of other consultancy agreements
was not disclosed by either the employee or
Dr Novellie. Dr Novellie
undertook to take the matter further with Magome. Dr Novellie
enquired from the employee whether he was
going to attend interviews
for the position of Manager: EMS scheduled for Monday 30
th
at 12:30. The employee confirmed that he would attend but it would be
under the condition stated in his letter of 16 July 2001
(“
i.e
under protest and with reservation of his rights in terms of the
Labour Relations Act-this matter was relayed to Mr Magome
”).
The minutes of this meeting recorded further that no clarity was
reached on the consultancy position as Dr Novellie could
not reach
Magome telephonically at that stage. It was recorded that the
employee requested further time to ‘clarify certain
issues
pertaining to the contractual option’. It was then indicated to
him that Magome would deal with the matter. Dr Novellie
and the
employee signed the minutes of that meeting as a true reflection of
what had transpired in that meeting.
40.
On 30 July 2001 the employee attended a meeting for an interview for
the position of Manager; EMS. Present were Magome, Smal
and Dr.
Michael Knight. It is common cause that at some stage during this
meeting the employee requested a meeting with and met
privately with
Dr Knight for discussions. It is also common cause that during these
discussions Dr Knight mentioned to the employee
that there would be a
lot of work if he opted for the consulting route and that he
mentioned the expansion of the Elephant National
Park as an example.
They thereafter returned to the meeting. It is also common cause
that, when the meeting resumed, the employee
was not interviewed for
the position of Manager EMS. Instead the consultancy option was
pursued. There was common understanding
that discussions on this
option would be continued the following day.
41.
The respondent’s case is that the interview was not proceeded
with because the employee elected to pursue the consultancy
route.
However, according to the employee, he was advised at this meeting
that he would not be interviewed if he applied “
under
protest”
and that he was left with no option but to explore
the consultancy option for which, even at that stage he had no
details. Both
Magome and Smal testified that after having discussions
with Dr Knight the employee voluntarily chose this route when it was
made
clear to him that work would be channelled to him. Both
testified furhter that the condition on the application letter had
already
been resolved by then. It is common cause that the employee
was ultimately not appointed to the position. The position was later
filled by the appointment of an external candidate, Mr Spies. It is
further common cause that the employee’s last day of
employment
was 31 July 2001.
42.
The employee’s version differs from that of the respondent as
to why he was not interviewed at this meeting. In my view,
this is
the most critical aspect of this case. It is important that at this
stage I set out the versions of the witnesses who were
present at the
interview.
43.
The first witness to testify on this aspect was Smal. On those who
attended he mentioned that Dr Novellie was also present and
not
Magome. This version is not correct because all the witnesses
including the employee, confirmed that Magome attended but that
it
was Dr Novellie who did not attend. Smal’s version on this
aspect is, in my view, a bona fide mistake and no adverse credibility
inference need be drawn against him. This contradiction, in my view,
does not strengthen either party’s version and is immaterial.
Smal testified that, when the employee sat in the interview, they
discussed the possibility of the vacant position of EMS with
the
employee. The employee had certain reservations relating to the
grading of the position and the effect it would have on his
salary
and benefits. He said that they explained to the employee that his
salary and benefits would not be affected. He testified
that the
respondent had a policy that they were implementing during the entire
process of restructuring which was to the effect
that, where
alternative positions were identified and affected employees applied,
their salaries were not to be tempered with if
they were higher than
the positions applied for. On the employee’s own version this
explanation had already been given to
the employee by Magome when
Magome made a promise to provide the employee with a redrafted job
description of his position. Smal
confirmed that during the interview
the employee requested that he and Dr Knight be excused from the
interview because he and Dr
Knight they wanted to have a separate
discussion.
44.
Smal testified that Dr Knight and the employee were allowed to have
their discussion privately. On their return, they made it
very clear
that, having assessed the situation, the employee would be more
interested in pursuing a consultancy option rather than
EMS position.
He testified, that at that point the interview was stopped. He
therefore understood this to mean that the employee
withdrew his
application for the position of Manager: EMS. He said that it was
then agreed that the employee would have discussions
with Magome and
Dr Novellie to finalise the contractual arrangement.
45.
The employee’s attorney put to Smal under cross-examination
that the employee’s version was that he was given an
“either
/or” situation. It was explained that what was meant was that
it was put to the employee that he could either
apply for the EMS
position or go for the option of the independent consultancy and
that, and if he was unsuccessful in his application
for the EMS
position, he would not be considered for the consultancy option. In
other words the two were mutually exclusive. This
was also denied by
Smal. He said that, as with all other affected employees, they
explored all suitable alternatives and in this
case the employee
opted for the consultancy route. In an effort to demonstrate that the
panel refused to interview the employee,
the employee’s
attorney put it to Smal that the employee refused to re-apply without
the condition that his application was
“
under protest”
as stated in his letter dated 23 July 2001. Smal testified that the
interview panel did indicate to the employee that it was difficult
to
pursue the interview if it was “
under protest”
because, should he be appointed in that position, the appointment
would be permanent. He said that they informed the employee that
they
would not like to appoint to that kind of a position someone who did
not feel comfortable about such an appointment. Smal
testified that
it was at that point that the employee requested to have a private
meeting with Dr Knight. Smal conceded that at
no stage did he receive
a document from the employee that indicated that he was no longer
applying “
under protest”.
46.
Magome confirmed Smal’s version that the employee voluntarily
chose the consultancy option. He confirmed that this was
after he had
discussions with Dr Knight outside of the meeting. It was put to
Magome under cross examination that they did not
consider the
employee’s application for the post of Manager: EMS due to the
fact that the application was done “
under protest”
.
His reply was that the employee on his own accord withdrew his
application after he had had discussions with Dr Michael Knight.
At
that stage, Magome testified, the employee had no fear and no
insecurity as he would also receive early retirement and still
be
engaged as a consultant. On the question that his application was not
considered because it was still under protest, Magome
testified that
on the day that the employee attended the interview, the condition of
“
under protest”
was no longer an issue because he
was convinced that now that the employee had attended he had come to
apply for the position because
he was interested in the position. He
testified that what had to be clear to the employee was that, if he
accepted the new position
there would no longer be a debate about the
terms of reference for consultants and the functions in the new
position. He was expected
to forget about the past. He denied that
the panel refused to interview the employee.
47.
The employee’s evidence on what happened at the interview was
that he reiterated that his application was still under
protest and
that ‘
they would not interview’
him under those
conditions. He said that he requested a ‘
caucus’
with Dr Michael Knight and they had a discussion outside the meeting.
He testified that he told Dr Michael Knight that what was
going on
was not fair as he was put in a position in which could not make a
“valued decision”. He said that Dr Michael
Knight then
indicated to him that there should be quite a lot of work if he opted
for the consultancy route and mentioned the expansion
of the Elephant
National Park as an example. The employee said that he and Dr Knight
thereafter returned to the meeting. In his
evidence in chief the
employee was asked by his counsel what was then indicated to the
other members of the panel when he and Dr
Knight returned to the
interview. The employee’s reply went as follows:
“
Well
I did not withdraw my application under protest. So I was forced to
go down the contractual route, and I met with him the following
day
to initiate that process.”
He
was then asked whether he indicated to the other panel members that
you would rather opt for the consultancy. His answer was:
“
No
I did not. I had no option, because I did not withdraw. I made it
very clear at that meeting that was going under the conditions
that I
was applying under protest and they put it in writing that they would
not interview me. In fact I was surprised I actually
was asked to go
to that meeting because as I repeated, they asked me to reapply by
the 26
th
which
I did not do, and I reiterated on the 27
th
that
I was only going there under protest. So frankly I think with the
greatest of respect to my colleagues in National Parks it
was a scam
to draw me where in fact there was no consultation. I did not opt for
the contractual route. It was my only option that
was left to me.”
48.
The employee testified further that after the interview he met one Dr
Maree (an Industrial Psychologist) who asked him what
was wrong with
him and called him to his office. The employee testified that, after
he had explained to Dr Maree what had happened,
Dr Maree asked him
why he could not accept the EMS position and withdraw his application
under protest. He said that Dr Maree explained
to him that in that
way he would guarantee himself a permanent position. He heeded the
advise and Dr Maree volunteered at his own
request to go to the
interview panel and put that proposition. He testified that when Dr
Maree returned he reported that he was
unsuccessful.
49
Unfortunately Dr Maree was not called to testify about his
discussions with the employee and what happened if he, indeed, went
to the interview panel. This version was put to Smal. Smal denied
that Dr Maree ever came to the interview meeting that day. This
version was however not put to Magome who was part of the interview
panel. An opportunity to do so arose when Magome testified
that in
one of the various discussions he had with the employee he at some
stage advised him to consult Dr Maree. The evidence
that Dr Maree
went to the interview panel to withdraw the “
under protest”
clause is therefore not admissible as it is hearsay evidence and does
not conform to the exceptions to the rule.
50.
Subsquent to the day of the interview, Dr Novellie was asked by
Magome to negotiate with the employee a contract for the provision
of
services to the respondent. This was in pursuance of the employee’s
decision to pursue the consultancy option. It is common
cause that a
number of meetings between Dr Novellie and the employee were held in
which they sought to agree on various details
of the consultancy
agreement. The employee made his own contribution to the
negotiations. Indeed some draft agreements were produced
in the
process.
51.
On 23 August 2001 the employee placed Dr Novellie on terms to send
him a ‘Memorandum of Intent’ as well as a final
draft
before he went, that is the employee overseas. He requested that the
final draft be faxed by no later than 29 August 2001.
He was due to
leave the country on 24 August 2001 and it was to be faxed to a
Johannesburg fax number. Dr Novellie advised him
that the people from
legal and financial services who had to approve the contract and
Magome, were not available, and, that he
would prepare another draft
for Magome. This response was made on 29 August 2001. On the same
date and whilst the employee was
still overseas a dispute concerning
the fairness of the employee’s dismissaal was referred to the
Commission for Conciliation
Mediation and Arbitration (“CCMA”)
by his union. The referral done was on the specific instruction of
the employee.
53.
On the 10
th
September 2001 Magome wrote to the employee in
response to the employee’s request made to Dr Novellie for a
“Memorandum
of Intent”. In the letter Magome informed the
employee that in view of his referral of a dispute concerning his
dismissal
to the CCMA he was reluctant at that point to provide such
a memorandum of intent or to further pursue the finalisation of a
fixed
term contract. Magome proposed that they should, instead, meet
upon the employee’s return to South Africa in an attempt to
resolve the dispute. In response to this letter, a letter was
forwarded to the respondent on behalf of the appellant on 10 October
2001 arranging a meeting. Magome testified that he telephonically
discussed the contents of the letter with a representative of
the
employee’s union. He said that he advised him that the
respondent was still prepared to give the employee the consultancy
contract. The union representative’s employee undertook to
revert back to him after taking instructions from the employee.
Magome testified that the union representative never reverted to him
and the matter took its course at the CCMA. In the end the
consultancy agreement was not finalised.
54.
The employee was paid his salary for a period of three months after
his last day of employment by the respondent. Magome testified
that
this was due to human error. The payment was discontinued thereafter.
It is not known if the money was refunded.
Proceedings
in the Labour Court
55.
In the Labour Court the appellant contended that the dismissal of the
employee was both substantively and procedurally unfair
and sought
reinstatement, alternatively compensation and costs. It disputed that
the employee’s position had become or should
have become
redundant. The respondent contended that the employee’s
dismissal was based on its operational requirements and,
more
particularly, that the position had become redundant.
56.
The Labour Court found that on the evidence presented by the
respondent’s witnesses, there was ‘a strong’
commercial rationale for the restructuring of the respondent’s
operations and to reduce its “wage bill”. The
Labour
Court held that it was up to the respondent to decide how the
functions of the employee should be performed and that the
respondent
did not require the employee’s ‘permission and blessing’
to make policy shift to accommodate its operational
requirements’
for financial survival. The Labour Court found that, on the evidence,
the decision to declare the employee’s
position redundant was a
bona fide one, despite the fact that the employee believed that his
function should continue. The court
reasoned that the employee knew
very well that he had to leave EIA’S and that he had since
October 2000 known that his position
was threatened.
57.
With regard to the contention on behalf of the appellant that the
respondent should have instituted disciplinary proceedings
once it
became clear that the employee was refusing to change his focus as
instructed, the Labour Court recorded that the argument
was not
pursued with much vigour. However, the Labour Court accepted Magome’s
version of his style of management when dealing
with senior
management and held that no inference should be drawn from his
failure to discipline the employee. The court reasoned
that it was
clear that the employee did not have the intention to be deliberately
insubordinate.
58.
The Labour Court further found that the employee was genuinely
assured of a position in the proposed structure, but that all
those
affected accepted the new changes and that it was only the employee
who was adverse to any changes to his position. The Court
held that,
if the employee had followed the instructions of Magome, he would
have been retained in the employ of the respondent
in the position of
Manager: EMS. His ‘intransigence’, the Labour Court held,
caused the respondent to advertise that
position internally and treat
all the applicants the same. The Court found further that the
respondent was entitled to decide not
to accept an “under
duress” application given the fact that a long consultation
process which included meetings and
correspondence had taken place.
The employee, the labour court held, would have withdrawn the
condition if he was interested in
the position of Manager:EMS. The
court stated that it was because of the employee’s his own
actions that Spies was appointed
to that position.
59.
The Labour Court consequently found that the respondent was entitled
to declare the employee’s position redundant and
that a fair
procedure was followed on dismissing him.
The
Appeal
60.
In the view that I take of the matter, the point which counsel for
the respondent took is fatal to the appellant’s contention
that
the dismissal of the employee was both substantively and procedurally
unfair. That is the point that the employee made an
election at a
certain stage to go the consultancy route and, once he had made that
election, he could not subsequently complain
that he had been
dismissed unfairly. The employee made that election on the 30
th
July 2001. This is how he made that election:
60.1.
Prior to the 29
th
July 2001 he had applied for the
position of Manager:EMS “under protest” because, it would
seem, he still wanted to
reserve his right to challenge either the
respondent’s decision to declare his post redundant or because
he still wanted
to challenge his dismissal which appeared to be
imminent.
60.2
On the 30
th
July an interview had been scheduled when the employee would be
interviewed for the position of Manager:EMS.
60.3.
The employee came to the meeting that was meant to be his interview
for the above position.
60.4.
On the employee’s version the first respondent’s attitude
at the interview was that his application for the position
of
Manager:EMS would not be considered unless he withdrew the “
under
protest”
part
of that application and, if he withdrew that part, then he would only
be considered for that position if he was not going to
pursue the
consultancy route and vice versa. On the employer’s version,
the first respondent was prepared to consider the
employee for the
position of Manger:EMS if he did not pursue the consultancy route and
vice versa. The first respondent’s
version was that the “
under
protest”
part of the employee’s application was no longer an issue at
that stage and, provided that he was not pursuing the consultancy
route, they would consider his application for the position of
Manager:EMS.
60.5.
The employee decided to go the consultancy route and to that end,
subsequently held negotiations with the first respondent’s
representative aimed at the conclusion of an agreement in terms of
which the first respondent would give him some work as a consultant
and not as its employee.
60.6.
The employee became impatient with the first respondent’s
representatives and ended the negotiations before the negotiations
could reach finality.
60.7.
When the employee had ended the negotiations relating to the
consultancy, he then sought to revert to the dismissal issue
and
referred an unfair dismissal dispute to the CCMA.
61.
On the above facts there can be no doubt that the employee could not
pursue both the option of appointment as a full-time Manager:
EMS and
the option of being a consultant because the consultancy route
necessarily required that the employee be an independent
contractor.
There can be no doubt that if, the negotiations relating to the
consultancy option had resulted in an agreement, the
employee would
not have referred the dismissal dispute to the CCMA and, ultimately,
to the Labour Court. He referred it because
his election did not work
out the way he may have wanted it to work out or simply because he
changed his mind about the wisdom
of his election. His remedy lay
elsewhere but not with pursuing an unfair dismissal claim. In the
meantime the first respondent
had relied on the election that the
employee had made.
62.
Although the employee sought to argue that he was pressured into
pursuing the consultancy option, there is no doubt that whatever
pressure, if any, may have been put on him, it did not amount to
duress in law. The decision to go the consultancy route was voluntary
and, therefore, completely valid in law. Even if the employee’s
dismissal was unfair, it seems to me that this is a case
where he
would not have been entitled to any relief because whatever financial
loss he suffered might not have occurred if he had
not prematurely
ended the negotiations for a consultancy agreement.
63.
In the light of the above, the appeal should not succeed. With regard
to costs I am of the opinion that the requirements of
the law and
fairness do not dictate that an order of costs should be made in this
case.
64.
In the result the following is the order of the Court:
The
appeal is dismissed.
There
shall be no order as to costs.
_________
Tlaletsi
AJA
I
agree.
_________
Zondo
JP
I
agree.
_________
Waglay
JA
For
the Appellant: Mr Van der Riet SC
Instructed
by: Wlillem Koekemoer Attorneys
For
the Respondent: Mr R Sutherland SC
Instructed
by: David Short Attorneys
Date
of Judgment: 11 December 2007