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[2010] ZALAC 38
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South African Transport and Allied Workers Union v Khulani Fidelity Security Services (Pty) Ltd (JA25/09) [2010] ZALAC 38; (2011) 32 ILJ 130 (LAC) (6 May 2010)
JA25/09 –
A
W BOSMAN
3
JUDGMENT
2010-05-06
IN THE LABOUR APPEAL COURT
JOHANNESBURG
CASE NO
: JA25/09
DATE
: 2010-05-06
In the matter between
SOUTH AFRICAN TRANSPORT AND First Appellant
ALLIED WORKERS UNION
PERSONS APPEARING ON ANNEXURE Second Appellant
“
A” HERETO
And
KHULANI FIDELITY SECURITY SERVICES (PTY) LTD Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
DAVIS JA
: In August 2006, the first appellant acting on
behalf of the second appellants referred a dispute to the CCMA, which
pertained
to the retrenchment of the second appellants on
16 August 2006. The dispute was referred by the CCMA to
the court
a quo
, given the inability of the parties to resolve
the dispute by way of conciliation. The first appellant then
proceeded to institute
proceedings against the respondent on behalf
of the second appellants in the court
a quo.
In this case, the first appellant claimed payment to compensation on
behalf of the second appellants arising out of their retrenchment,
the case being that the retrenchment of these appellants was both
substantively and procedurally unfair. The court
a quo
dismissed the claim. By way of petition the appellant has proceeded
to this court on appeal.
Briefly the facts can be summarised as follows. The respondent
concluded a security agreement with its client,
Aviation Coordination Services
(Pty) Limited, (ACS), in
terms of which agreement, the respondent undertook to provide
security services to ACS Airport
throughout South Africa.
Clause 6.10 of the security agreement is a particular relevance. It
reads;
“6.10: The Contractor shall, on a quarterly basis,
conduct polygraph testing on each member of its security personnel
who perform the Service at the Sites and shall forward the results of
such polygraph testing to the Contractor within 14 days of
such
testing having been performed.
6.10.2: Such polygraph testing shall be performed by an independent
third party and shall analyse the integrity, honesty and suitability
of each member of the security personnel in carrying out their
functions in accordance with the terms of this Agreement.
6.10.3: Should any member of the security personnel fail such
mandatory polygraph testing, the Contractor shall immediately inform
ACS in writing and ACS may, in its sole discretion, direct the
Contractor to remove, at the Contractor’s cost, such individual
from the relevant Site and replace him with a suitably qualified
individual.”
Prior to the conclusion of this agreement, the respondent consulted
with the first appellant, which agreed that its members could
be
tested by way of a polygraph and indeed could be removed from their
positions, should they fail their respective polygraph tests.
Mr Ysel, the general manager of the respondent, gave evidence,
which was uncontested, namely that there had been consultation
with
the first appellant, insofar as the polygraph testing of baggage
handlers was concerned.
The appellant could, if it so wished, have called its office bearers
to gainsay this particular averment of Mr Ysel, but no
evidence
was forthcoming. Thus Mr Ysel’s evidence therefore stands as
being common cause.
On 25 July 2003, the respondent and first appellant
concluded a collective agreement, in terms of which the first
appellant
appeared to consent to its members undergoing polygraph
tests.
No specific agreement of a written nature was produced, but the
evidence of both witnesses who testified on behalf of the appellant,
Mr Ysel and the shop steward, Mr Kepasi, was that an
agreement did so exist.
Indeed, in Mr Kepasi’s evidence, he testified about a
meeting which had taken place between employees, such as the second
appellants and first appellant as follows;
“You remember yesterday, you said that you were consulted as
SATAWU and you went to the extent of meeting at Pomona? Yes.
What
was the meeting about? The meeting was about the dissatisfaction of
us as workers; to say the company is sending us to polygraph
test.
Then Jackson and Rendell came and clarified the position of saying;
why SATAWU agreed with the company because they will
be leaving. For
your only information or for the court's information; the problem we
were experiencing at the airport was a vastly
theft that was taking
place around the airport and we were responsible for screening the
bags that were going to the flight. So
they wanted to prove and for
all companies, not for Fidelity only; ACSA people to prove whether
their employees are honest or dishonest.
So that was the reason they
had to come to Pomona to clarify that position. Because us as
workers were dissatisfied in it.”
The respondent and first appellant also concluded a site specific
agreement which was mentioned in the record, but not produced
into
evidence in respect of the members of the first appellant who were
employed as CTX operators at 100 Percent Whole Baggage
at OR Tambo Airport.
The second appellants were employed as operators at the time of their
retrenchment. They submitted to polygraph tests during August 2006
and failed these tests. After they failed their tests, Mr Ysel
contacted Mr Kepasi, the fulltime shop steward on behalf
of
first appellant and advised him and the second appellants that they
had failed these polygraph tests.
According to Mr Ysel’s testimony, he held consultations with
the second appellants, during which consultations; he advised
them
that, because they had failed their polygraph tests, they could no
longer continue working in this capacity. They were offered
alternative positions as grade C security officers at sites situated
close to their respective places of residence.
They were further offered an opportunity to consider being placed in
alternative positions. None of the second appellants was
so prepared
to accept the alternative positions offered to them, as a result
thereof, they were retrenched with effect from 16 August 2006.
THE COURT
A QUO
In December 2008, Bhoola J, held that the dismissal of
second appellants was substantively and procedurally fair and
that
their claim had to be dismissed with costs. Her judgment was
effectively predicated on two principal findings. In the first
place
she found;
“It appears to me therefore, on a balance of probabilities,
that the parties had reached agreement to the effect that
CTX
operators who failed their polygraph tests would be removed and
placed in alternative employment outside the airport.”
She then went on to consider the implication of that finding and, in
particular, whether there had been consultation sufficient
to meet
the requirements of Section 189 of the Labour Relations Act,
66 of 1996 (LRA).
She found thus;
“In my view, there has been substantial compliance with section
189 of the Act. The individual operators must have known
that they
would be removed as CTX Operators if they failed. Ysel testified
that other employees who failed had accepted the alternative
without
question as this rule was common knowledge, and the employees knew
their union had consented to the testing. Furthermore,
the
individual applicants were offered reasonable alternative employment
which they rejected; they were offered an opportunity
to consider the
alternatives as well as to make proposals concerning alternative.
They availed themselves of none of these options.”
The matter has now come on appeal. Mr Mphahlani, who appeared
most ably on behalf of the appellant, submitted that Bhoola J
had erred in that she had found that the failure of the second
respondents to pass the polygraph test, constituted sufficient ground
to dismiss them. Inadequate consultation had taken place between the
first appellant acting on behalf of the second appellants
and
respondent and further respondent had failed to show with whom it had
consulted from the Ranks of first appellant insofar as
these
dismissals were concerned.
Mr Mphahlani went on to contend that there had been inconsistent
compliance with the polygraph test, in that, on previous
occasions,
some of the second appellants had failed polygraph test for example
(Mr Mphe), and had not been dismissed, notwithstanding
noncompliance
therewith.
Furthermore, he pressed the point that there had been no clear
evidence to the effect that an agreement had been reached with first
appellant regarding the consequences of such failure of the polygraph
test, nor had there been specific consultation insofar as
these
particular appellants were concerned.
EVALUATION
There can be no doubt that the security agreement cited earlier in
this judgment, (see Clause 6.10 of that agreement) contemplated
a
process whereby polygraph testing was mandated for employees who
worked as baggage handlers. That is not only clear from the
wording
of the clause; it is evident from the evidence of both Mr Ysel
and Mr Kepasi.
Mr Mphahlani contended that the appellants had, in effect, been
dismissed for theft. There are questions in the record pertaining
to
stealing, but they are in essence irrelevant. The purpose of the
polygraph test was manifestly not to show that theft had actually
taken place; it was to test the integrity of all who worked in
positions where considerable amount of theft had previously taken
place.
The unchallenged evidence indicates that this problem and proposed
polygraph solution had been canvassed with first appellant.
The
unchallenged evidence of Mr Kepasi and Mr Ysel, who was
repeatedly cross examined and repeatedly gave the same answers
concerning consultation, was that the union announced in effect party
to the arrangement. Had the first appellant objected to
any of this
evidence, it was entitled, as indeed it should have, to place before
the court, evidence which contradicted the contentions
of both
Mr Ysel and Mr Kepasi and consequently respondent’s
core case.
The unchallenged evidence of Mr Ysel was that he had discussed the
issue of ACS requiring quarterly polygraph testing of the first
appellant’s members with the first appellant, prior to the
conclusion of the security agreement. It appeared that the first
appellant in agreement therewith.
Ysel testified further that he had offered second appellants
alternative positions which they had refused. That too is evident
from the letters which were generated in this regard. As is
illustration thereof, on 16 August 2006, Ms Mokgopha,
one of the second appellants received a letter in which she was
informed that she failed her polygraph test;
“You failed your polygraph test and as it a contract
requirements by our client ACS that all security officers deployed
at
100% H.B.S. must pass a polygraph test every 3 months we can no
longer use you at 100% H.B.S and we must therefore remove
you
from the airport.”
The letter goes on;
“We offered you employment at Robertville as a normal grade C
security officer. You refused the alternative employment
offer and
told me that you will not work at Robertville and that you wanted to
go. We therefore now retrench with immediate effect
for operational
reasons.”
There was no challenge in the court
a quo
to the
reasonableness of the alternative positions offered to the second
appellants by the respondent and, more importantly, they
did not
claim severance packages which respondent refused to pay to the
second applicants due to their refusal to accept alternative
positions.
Accordingly, as appears in evidence, this issue was not placed in
contention. Mr Mphe conceded that he was offered an alternative
position and refused it. Ms Mokgopha’s contention that
she was not offered an alternative position, clearly can be
rejected.
A letter of retrenchment indicated that she was offered an
alternative position, which she conceded under cross examination;
“Did he offer you an alternative position as a grade C security
officer? All he told me was that I had failed and I was
going to be
removed, but I did however see on the papers that there was an
alternative. Oh, so you saw; a minute ago you told
the court, you
were told this, now you say this, now which of the two is it? What
was written there is what it is. And what salary
were you going to
receive as a grade C security officer? I do not know. So why did
you again testify a couple of minutes ago
that you received less
money as a grade C security officer? I knew for a fact that grade C
earns lesser than a CTX operator.
Were you prepared to work as a
grade C security officer? I was yes.”
Both Ysel and Kepasi’s unchallenged evidence was that each of
these second appellants was engaged in a process of consultation
to
provide them with alternative employment.
The appellant’s argument is that it was not involved at this
stage. But it is clear, not only was Mr Kepasi involved,
but
the very purpose of the agreement with the union was that, in the
event that employees failed the polygraph test, they could
no longer
work as baggage handlers. That much is clear from uncontested
evidence.
Accordingly, the question arose as to the consequence of such a
finding. Section 189 of the LRA provides that there must be
an
attempt by an employer, such as respondent, to provide alternative
accommodation after a process of consultation.
The consultations, according to the evidence, included the need for
second appellants’ removal from their positions and a
further
engagement with them insofar as alternative positions were concerned.
Further, they were granted an opportunity to make
representations
concerning alternative positions.
There is no evidential basis to conclude that there had been
noncompliance with the provisions of section 189 of the LRA.
To
sum up therefore, there was an agreement. That agreement was
designed for operational reasons, namely to ensure that only
people
of proven integrity could be maintained in these position. That was
the purpose of the agreement with respondent’s
client. It was
the reason why consultations took place with the first appellant. The
position was also known to all the workers
employed therein; that is
failure of the test gave rise to termination from that post for the
reasons I have mentioned, being operational
reasons.
Thereafter there was an obligation to engage in a process of
consultation with relevant employees and to offer, if at all
possible,
alternative positions. Not only was that done, but an
offer was made to make representations concerning further alternative
positions,
other than that which was offered by respondent.
For these reasons, there is no basis by which this court in my view
can overturn the decision of the court
a quo.
Therefore, I
would dismiss the appeal, but make no award as to costs.
---oOo---
_______________________
DAVIS
HENDRICKS & MUSI AJJA
: Concurs.