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[2014] ZALAC 116
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WORLD OF WINDOWS (Pty) Ltd v Sumbane (CA20/2012) [2014] ZALAC 116 (31 January 2014)
REPUBLIC OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no : CA20/2012
In
the matter between:
WORLD
OF WINDOWS (PTY) LTD
Appellant
and
JERRY
FATTINE SUMBANE
Respondent
Heard:
27 August
2013
Delivered:
31 January 2014
Summary:
Dimissal for operational requirements – employer must select
employee for retrenchment according to agreed criteria
or criteria
which are fair and objective- employee dismissed before alternatives
to dismissal exhausted - dismissal premature
and substantially
unfair. Appeal dismissed.
CORAM:
WAGLAY JP, C J MUSI AJA
et
DLODLO AJA
JUDGMENT
C J MUSI AJA
[1] This is an
appeal against the judgment of the Labour Court (Rabkin-Naicker J)
wherein it found that the respondent’s dismissal
was unfair and
consequently ordered his reinstatement. The appeal is with the leave
of the court
a quo
.
[2] The respondent was employed by the
appellant on 6 January 1998 as a glass cutter. Due to his ill-health,
he was moved to the
store-room. During 2008-2009, the appellant had
to dismiss some of its employees based on its operational
requirements. The respondent
was selected as a candidate for such
dismissal. Consultations were held but they did not yield a positive
result and the respondent
was consequently dismissed on 9 March 2009.
He challenged his dismissal in the court a
quo.
[3] The facts of this matter can be
summarised as follows. The respondent was employed in Johannesburg,
during 1997, by the appellant.
It is not clear whether such
employment was on a permanent basis or not. Nevertheless, on 6
January 1998, he was employed by the
appellant at its Cape Town
business. He moved from Johannesburg to Cape Town for that purpose.
He worked as a glass cutter and
became the most senior glass cutter
at the appellant.
[4] During 2007, he got ill and Mr Van
der Merwe, the glass and export manager of the appellant placed him
on light duty after being
so advised by the respondent’s
doctor. He initially worked in other departments but was ultimately
moved to the storeroom
to assist the two storeroom assistants.
[5] Although he worked in the
storeroom, his salary grade remained the same as when he was in the
glass cutting department (grade
D), which was different from the
storeroom assistants’ grade. When his health condition
improved, he requested Van der Merwe
to allow him to return to the
glass cutting department but Van der Merwe told him that the company
was still busy with his case.
Van der Merwe could not recall whether
the request was made or not.
[6] The appellant not being immune to
the global economic meltdown felt its effects to such an extent that
it could not survive,
financially. Its poor economic circumstances,
occasioned by the global recession, necessitated the decision to
dismiss some of
its employees based on its operational requirements.
[7] On 29 November 2008, Alan Reed,
the Group Chief Executive Officer (the CEO), sent a memorandum to all
directors and staff informing
them about the possibility of
retrenchments. He set out the reasons for the possible retrenchments
and the matters on which the
appellant had to consult with its
employees. He stated that “retrenchments would take place on
the LIFO basis in each department,
having regard for skills and
position held, as well as disciplinary record”. Staff
representatives were invited to attend
a meeting on 4 December 2008
to discuss the impending retrenchments.
[8] At the meeting of 4 December 2008
– which was not attended by any staff representative of the
appellant, the purported
selection criteria were stated as follows:
“
Criteria
shall
include
the following: Last in first out per department, skills retention,
and disciplinary record.” (my underlining).
This meeting was held despite the
National Union of Metalworkers of South Africa’s (NUMSA)
objection to the notice because
it, as a representative of some of
the employees, was not notified. NUMSA indicated that it will be
available on 8 December 2008,
for consultation.
[9] On 23 January 2009, the CEO issued
a further retrenchment notice and invited the affected employees to a
consultative meeting
on 28 January 2009. This notice contained the
same selection criteria as the letter dated 29 November 2008.
[10] On 28 January 2009, the
respondent, as an employee earmarked for retrenchment and NUMSA
officials attended the meeting. Mr
Maphupha, the Human Resource
Director of the appellant, kept the minutes of the meeting. After the
CEO explained the rationale
behind the proposed retrenchments and the
time line thereof, the following is minuted “Criteria = LIFO
skills”. The
respondent asked the following questions:
“
1.
Which procedure the company used to get the names of the first group?
2.
Why can’t the company work normal time first before retrenching
people?
3.
I was employed as a glass cutter. “When I was ill and was moved
to the storeroom. But why am I being retrenched.”
(Quoted
without emendation.)
His questions went unanswered. The
meeting was adjourned until 4 February 2009.
[11] The respondent did not attend the
meeting of 4 February 2009. Mr Mario Bratz represented the
non-unionised employees, which
included the respondent. NUMSA
indicated that it would like to talk about the criteria and the way
forward at the next meeting
which was scheduled for 11 February 2009.
[12] The meeting did not take place on
11 February 2009 but it was held on 18 February 2009. During this
meeting, NUMSA suggested
that the appellant consider “LIFO in
the company with regard to skills, bumping and voluntary severance
packages”.
The appellant responded that employees were already
requested to ask for voluntary retrenchments and that it cannot have
people
who are partially skilled for the job, hence the criteria must
be per department.
[13] On 24 February 2009, Mr Maphupha
sent a list of all the employees who were earmarked for retrenchment
including five who were
still subject to discussion because of
“changing departments”. The respondent was one of the
five.
[14] On 25 February 2009, another
meeting was convened. Although the minutes reflect that the
respondent was not present, it is
clear therefrom that he was
present. According to the minute, the respondent indicated that he
will be going for an operation on
the following day. The reason for
his proposed retrenchment was explained to him and he indicated that
he will give an answer on
the subsequent Monday. During this meeting
Bratz accepted that he (Bratz) may be retrenched.
[15] On 2 March 2009, Maphupha held a
meeting with the respondent. He was asked whether he accepted the
suggested criteria of last
in first out per department and he
answered affirmatively when he was asked whether he agrees that he
works in the storeroom he
vehemently denied it and insisted that he
works in the glass cutting department. He informed Maphupha that the
move to the storeroom
was temporarily pending the improvement of his
health. Maphupha asked him whether he was prepared to re-negotiate
his pay-rate
if some light duty position can be found for him. His
response was that he was used to the wage that he earned and would
like to
retain it, and that he does not feel like carrying heavy
glass but if it is the only way to keep his rate then he was prepared
to die carrying heavy glass. Maphupha reiterated the appellant’s
position and informed the respondent that the appellant had
nothing
suitable for him and that he will therefore be retrenched. The
minutes of this meeting, unlike the others, were typed but
unsigned.
According to Maphupha, the original which was taken long-hand is
irretrievably lost.
[16] Strangely, on the same day, 2
March 2009, Maphupha gave the respondent a letter to give to his
(respondent’s) doctor.
The letter reads as follows:
“
THE
ATTENDING DOCTOR
Dear
Sir
RE:
MR JERRY SUMBANE
We
would like to know whether Mr Jerry Sumbane can be allowed to carry
heavy glass ± 165kgs at a time from 7am to 17pm daily
as this
is part of his job.
His
trade is glass cutting and he has shown that he would like to
continue cutting glass as per his job responsibilities since his
employment date with the company.
Please
no confidential information required.”
[17] By letter dated 3 March 2009, Dr
Abrahams responded as follows:
“
RE:
Jerry Sumbane
The
above-mentioned pt will be referred to our occupational thearapist
(sic) for formal work-place evaluation.
I
will inform you of the outcome as soon as possible.
Please
explain if employees are expected to carry glass of ± 165kgs
without any mechanical assistance as I can imagine that
most
employees would not be able to carry that load without developing
lower back problems
.”
On
9 March 2009, the respondent was dismissed with effect from 10 March
2009.
[18] Mr Maphupha testified that
agreement was reached on the selection criteria at the meeting of 18
February 2009. He also testified
that bumping, as suggested by NUMSA,
was considered but rejection because it is difficult to implement.
According to him, the respondent
told him that he is not strong
enough to go back to the cutting department hence he requested the
respondent to procure a medical
certificate to the effect that he is
fit and able to resume duty in the glass cutting department. He
denied that the note by Dr
Abrahams was given to him by the
respondent.
[19] The respondent on the other hand
testified that he did not agree to his retrenchment and that he was
dissatisfied that he was
earmarked for retrenchment while he was a
very experienced glass cutter and he had taught all the glass
cutters, at the appellant,
how to do the work. He insisted that his
move to the storeroom was temporary. He was adamant that he gave the
doctor’s letter
to Maphupha.
[20] The Labour Court was of the view
that it was unnecessary to make a finding on the issue of the
substantive fairness of the
selection criteria in the process as a
whole. The learned judge concluded that this is a case where the
failure to exhaust the
alternatives to the retrenchment of the
respondent is an example of a substantively unfair result. The court
a quo
found that the aspect of whether the doctor’s
letter was seen by the appellant before retrenching the respondent
was a critical
one. The learned judge made an adverse credibility
finding against Maphupha and found that the letter was delivered to
him by the
respondent. In the judgment of the court
a quo,
the
retrenchment of the respondent was decided upon in spite of the
possibility existing that a formal workplace evaluation by
an
occupational therapist may have found him fit for work in the glass
cutting department. Therefore, so reasoned the court
a quo
,
the appellant’s failure to exhaust alternatives to retrenchment
impacted on the substantive fairness of the respondent’s
dismissal.
[21] Although heads of argument were
filed on behalf of the respondent, there was no appearance on his
behalf before us.
[22] Mr Leslie, on behalf of the
appellant, argued that any consideration of an alternative in the
glass cutting department for
the respondent would have necessitated
the dismissal of another employee. According to him the essence of
the court
a quo
’s judgment is that the appellant should
have considered bumping in order to save the respondent’s job.
He submitted
that bumping was considered and rejected during the
consultation process leading to the retrenchments. That being the
case the
appellant could not make an exception because it had a duty
to act fairly towards all employees. To make an exception would have
been unfair and iniquitous to the other employees earmarked for
retrenchment not least the person selected to be “bumped”.
[23] In terms of
section 189(7)(a)
and
(b) of the
Labour Relations Act, No 66 of 1995
, the employer must
select the employees to be dismissed according to selection criteria
that have been agreed to by the consulting
parties or if no criteria
have been agreed upon, criteria that are fair and objective may be
used. The employer bears the
onus
to prove that the selection
criteria were agreed upon or that it used fair and objective criteria
in selecting the employees to
be dismissed.
[24] Although Maphupha testified that
agreement was reached on the selection criteria, the appellant’s
case is at best equivocal
on this issue. Maphupha’s evidence is
that agreement was reached on the selection criteria at the meeting
held on 18 February
2009. However the minute of the meeting does not
contain a record of such agreement. During cross-examination Maphupha
was asked
about the agreement and the following was recorded:
“
So
far, what I’ve heard you say, is you say the company suggested
criteria, and the union came back to say LIFO in the company
with
regard to skills and bumping. I’am asking you, where is
it recorded that there was this agreement? --- Okay.
Well it
was not recorded that there’s a disagreement, because there it
was just points of discussions. It was not a
record of what was
agreed or disagreed …The purpose of the note is to keep a
record of the discussion, and you write down
everything …
(intervention) … And the points of discussions, yes …
Yes.
Now where is this important point of the agreement on the selection
criteria, which is your company’s case? ---
Oh-okay, on this
meeting, then – on the 18
th
, then, yes, it was not
settled.
It
wasn’t settled? --- We didn’t discuss it further, ja
.”
[25] Maphupha’s evidence
contradicted the appellant’s (then respondent) statement of
defence. In the said statement,
it stated that:
“
It
was specifically agreed at the meeting of 11 February 2009, that
staff would be selected on the basis of LIFO per skills
subdivision,
on other words, last in first out within a particular department
.”
[26] It was common cause that no
meeting was held on 11 February 2009 and the date ought to be 18
February 2009. On Maphupha’s
evidence no such agreement was
reached.
[27] It is also clear that the
selection criteria as suggested by the appellant were not consistent.
It vacillated from it would
include LIFO per department to being
“LIFO - skills” and ultimately to LIFO in each department
having regard to skills
and position held and disciplinary record.
[28] It is probably the confusion
created by the variable selection criteria that lead to the further
discussions with the respondent
in order to find an alternative
position for him. In keeping with the appellant’s duty not to
dismiss the respondent for
operational reasons when it has work which
he can perform, the appellant engaged the respondent with a view to
finding him an alternative
position.
[29] Maphupha admitted during
cross-examination that he wanted to avoid the respondent’s
dismissal and the only obstacle in
the way of accommodating him in
the glass cutting department was to ascertain whether he could
physically do the work. If he could
then he would be returned to the
glass cutting department. It is for that reason that he was referred
to the doctor. Although Maphupha’s
letter contained misleading
information, it is not necessary to determine whether he deliberately
made those misrepresentations.
I however agree with the trial court
that Maphupha’s evidence, in relation to him not having
received the doctor’s
note, is improbable and leaves a dent on
his credibility. He must have received the note. The respondent’s
evidence is clear
that he gave the doctor’s note to Maphupha.
The appellant admitted in the pleadings that the doctor’s note
was received
and evaluated. The only plausible reason why he was
asked to get confirmation from a medical practitioner relating to his
health
was to see whether he can be placed back into the glass
cutting department. The appellant’s (as respondent) plea in
relation
to this issue is very significant. It deserves reproduction.
It reads as follows:
“
6.1
This is admitted. Respondent’s Prince Maphupha met with
applicant on 2 March 2009, to discuss his suggestion that he be
transferred back to the glass cutting department, the net effect of
which would have been that he would not, on the basis of the
agreed
selection criteria be retrenched.
6.2
To consider of (sic) applicant’s suggestion, Maphupha
recommended that applicant procured a medical report. Although
the report did not however provide sufficient information, applicant
himself conceded that he could not fulfil the functions of
a glass
cutter, which involves carrying and lifting heavy glass.
6.3
For these reasons, respondent rejected applicant’s request to
be transferred back to the glass cutting department.”
[30] The case as pleaded makes it
clear that the medical report was to be procured in order to consider
the respondent’s suggestion
to be placed back in the cutting
glass department in order to avoid his dismissal. Mr Maphupha’s
version that the process
was over when he requested the respondent to
procure a medical report is at variance with the appellant’s
pleaded case and
the probabilities. The pleaded case also does not
tally with the minute kept by Maphupha. The respondent never conceded
that he
could not fulfil the functions of a glass cutter. He said he
does not like carrying heavy glass but if it is the only way to
retain
his rate then he was prepared to do it. The net effect of the
appellant’s pleaded case was that it would have placed the
respondent back in the glass cutting section if he was fit enough. It
is not necessary to decide whether this could only have been
achieved
by bumping another employee or not.
[31] It is clear that the respondent’s
employment was terminated while the parties were still exploring
alternatives to his
retrenchment. The only obstacle in the way of him
being placed in the glass cutting department was his physical
fitness. He was
adamant that he was fit enough to do the work. The
evaluation by an occupational therapist was not yet done. Therefore
the exploration
of alternatives to the dismissal was still
incomplete, making the dismissal premature and substantially unfair.
[32] In my view, there is no reason to
interfere with the Labour Court’s judgment.
[33] I accordingly make the following
order:
(a) The appeal is dismissed.
(b) No order as to costs is made.
C. J. Musi AJA
I
concur.
Waglay
JP
I
concur.
Dlodlo
AJA
APPEARANCES
FOR
THE APPELLANT:
Adv Leslie assisted
by
Adv Townsend
Instructed by Smith Tabata Buchanam
Boyes Cape Town
FOR
THE RESPONDENT:
No appearance