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[2014] ZALAC 9
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Gijima Ast (Pty) Ltd v Hopley (CA7/12) [2014] ZALAC 9; (2014) 35 ILJ 2115 (LAC) (7 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case no: CA 7/12
In the matter between
GIJIMA
AST (PTY)
LTD Appellant
(Respondent)
and
RAYMOND
HOPLEY
Respondent
(Appellant)
Heard:
23 May 2013
Delivered:
07 February 2014
JUDGMENT
TLALETSI
ADJP
[1]
This is an appeal against the order of the Labour Court (per
Rabkin-Naicker J) pursuant to a trial involving a dispute about
the
fairness or otherwise of the respondent’s dismissal by his
erstwhile employer the appellant. The appellant contended
that the
dismissal of the respondent was based on its operational requirements
and was fair. The respondent however, contended
that his dismissal
was unfair.
[2]
The Labour Court, in a judgment handed down on 9 March 2012, held
that the respondent’s dismissal was substantively unfair
and
ordered the appellant to pay the respondent compensation equivalent
to six times his monthly salary at the rate of his remuneration
at
the time of his dismissal and costs of the trial.
[3]
The appellant is appealing against that part of the order declaring
the dismissal to be substantively unfair. The respondent
in return
supports the order in respect of substantive unfairness but filed a
cross-appeal against that part of the order awarding
him
compensation. The appeal is in this Court with leave of the court
below.
[4]
I find it appropriate to set out the factual matrix of the dispute,
followed by a consideration of the appeal, the cross-appeal
and
lastly the issue of costs. For the sake of convenience the respondent
in the court
a quo
shall be referred to as the appellant and
the applicant in the court
a quo
as the respondent.
[5]
During the trial the appellant tendered the evidence of Hendrick
Stefanus Strydom and Marina Uys. The respondent testified on
his
behalf. The factual background in this appeal is, unless where
otherwise indicated, common cause. The appellant conducts business
of
providing information technology services to its clients. The
respondent was employed by the appellant at its Cape Town unit
from 1
January 2000 until his dismissal on 12 August 2010. He was at the
time occupying the position of Operations Manager
[1]
.
He had a credit service of 25 years and three months at the time of
his dismissal.
[6]
The respondent was engaged in the business unit called “Distributed
Computing Services” (DCS) which was a unit within
the section
called “Managed Services”. The respondent had been the
Operations Manager in the DCS for 18 months, having
previously been
an Availability Service Manager (ASM) for 10 years.
[7]
It is common cause that the performance of the DCS business unit was
not satisfactory in 2010. There was insufficient work to
justify the
number of staff members employed in the business unit. There was
therefore a need for the reduction in staff numbers
and reduction in
overhead costs. In the middle of the year 2010, the appellant
implemented a restructuring process in the DCS business
unit. The
process entailed the abolishment of the old organisational structure
and the establishment of a new structure. The new
structure was to
utilise less staff and as a result some of the positions, including
that of the respondent became redundant.
[8]
On 6 May 2010, a meeting took place with the employees in order to
advise them of the proposed restructuring. The respondent
attended
this meeting.
[9]
On 12 May 2010, the respondent was issued with a Notice in terms of
Section 189(3) of the Labour Relations Acts
[2]
(the Act). The process that was put in place was that the employees
had to apply for positions that were to be advertised in the
new
structure by submitting their curriculum Vitae. There was also an
agreement on the selection criteria for the appointment of
persons to
the new positions. The method of selecting which employees were to be
affected was recorded in the Notice of Restructuring
document as
follows:
“
The
company proposes using the following selection criteria:
a.
Skills, knowledge and/or
b.
Relevant qualifications and
experience and/or
c.
Years of service
This will be used to
identify the employees who might be affected by the possible
reduction in headcount. The business unit may
consider any additional
selection criteria that are proposed during the course of the
consultations by you. The criteria the parties
then agreed to be used
to identify those who might be affected by the possible
retrenchment”.
The
formal process was to be commenced on 6 May 2010 and was to be
completed by 12 July 2010.
[10]
It is common cause that the respondent applied for the positions of
ASM and Customer Service Manager (CSM) in the financial
sector.
Candidates were shortlisted for interviews for the two positions. The
respondent was one of the candidates selected.
[11]
On 24 May 2010, interviews were conducted by the panel consisting of
Phukubye, Prinsloo, Lange and Strydom. The respondent
was not
successful in his applications for the two positions. He was advised
on 28 May 2010 that the next step in the process was
that alternative
positions would be sought for him in the appellant as a whole. On 12
July 2010, the respondent’s employment
was terminated on one
month’s notice. The reason for the termination was recorded as
the appellant’s operational requirements.
The termination date
was 12 August 2010.
[12]
Strydom was the Divisional Human Resources Manager based in
Johannesburg. He testified that the interviews were conducted by
putting questions to candidates, had discussions thereafter and the
candidates were ranked on what the panel felt how they would
be best
suited to the position. The advertisements for the positions were
communicated through the internet and were restricted
to the Western
Cape Province.
[13]
In response to the question how the interviews were conducted and why
the respondent was not appointed, Strydom testified that:
“…
all
the candidates that were on the shortlist that were interviewed could
do the work. The panel of people who interviewed had to
select the
best person for that position and at the time the panel said that
[the respondent] was definitely not first, second
or third choice for
the availability services manager, there were other people however he
was the third choice on the client services
manager but he was not
the first or second choice”.
[14]
He mentioned that for managed services, the candidates selected
according to the panel ranking were Ernst Fortran, Barbara
Hare and
Sheree Gouws respectively. For ASM (now PetroSA) it was Allison
Cornelissan, Heidi Alterbury and Schalk Visagie. For Public
Sector
(CSM) it was Sheree Gouws, Peter Le Grange, for Finance it was Ian
Van Staden, Barbara Hare and the respondent was ranked
third, for
Retail it was Barbara Hare, Schalk Visagie and Ernst Fortran.
[15]
Strydom testified that although some of the candidates were ranked by
the panel some were changed by the Regional Executive
after some
other consultations. He disagreed that the respondent had more
experience than all the candidates appointed. However,
he could not
provide the relevant years of experience for Barbara Hare and that of
Ian Van Staden and how they compared to the
respondent. He further
disagreed that the scoring process and the interview process were not
objective. His reason for this view
was that he and Phukubye were
from Johannesburg and they did not know the people they were to
interview “
intimately”
and they selected the “
best
fit for the”
positions that were advertised.
[16]
In relation to seeking alternative position for unsuccessful
candidates, Strydom testified that the human resources manager
for
the Cape Town branch had consultations with the affected employees.
He mentioned further that as there were no available positions
in
Cape Town he believed that a position was offered to the respondent
in Gauteng and that he turned it down. He testified that
he
personally did not offer the respondent a position in Gauteng but
only heard from someone else. In response to the contention
by the
respondent that bumping should have been applied and that he would
not have been dismissed, Strydom testified that bumping
and LIFO were
not used as the criteria for selection. In response to the contention
by the respondent that the positions were “
ring fenced”
and that he was not considered for other positions in the rest of the
organisation, Strydom responded that the restructuring exercise
pertained to Western Cape only as they were the only ones who were
undergoing restructuring and that the advertised positions were
limited to the Western Cape.
[17]
On the performance of the respondent in the interviews, Strydom
mentioned that he did not “
interview very, very well. Apart
from the two people in, here in Cape Town who knows him I had had one
or two interactions with
Mr Hopley, we actually worked on a project
together and I was very surprised how he seemed ill prepared for the
interview. His
questions were not to the point, comments that were
made [were] that he didn’t answer what was really asked and he
really
didn’t interview very well”.
[18]
Under cross-examination, Strydom explained that LIFO was not used as
criteria and years of service was only used to determine
whether a
person qualified to be shortlisted and not who had the longest
service. Having been referred to the Pre-Trial Minute,
he stated that
years of service were taken into account by the selection panel but
that it was one of the criteria that were taken
into account. He
clarified that there were three positions that the respondent would
have been considered for in the ASM functions
and one in the CSM
function, all in all four positions. Ian Van Staden was appointed to
CSM, Ernst Fortran to ASM within the Sanlam
group and Barbara Hare
was appointed to ASM Western Cape and Schalk Visagie to CSM retail.
No scoring was done during interviews,
only a discussion of the
candidates and how they performed. He explained that ‘
all
the applicants that came for the interviews were good candidates.
They were certainly …nothing wrong with Mr Hopley’s
work. The panel after interviewing the people got to a unanimous
agreement of who the successful candidate for this position would
be.
We certainly at the interview did not compare the one candidate with
the other, we compared the candidate with the job spec
and the
interview, the questions we asked, the responses that was given to us
by the interviewee and certainly to my knowledge
Mr Hopley was a good
employee. I certainly don’t know of any poor work performance
or anything that was instituted against
him. All these people that we
interviewed were good employees but we could not place all of them.’
[19]
Strydom confirmed that there was no scoring process in relation to
comparing one individual employee’s years of service
with the
other individual’s years of service. He could not recall
specific experiences of the candidates in relation to the
positions
they were interviewed for as required by the advertisements. He did
not know each candidate’s years of experience
as compared to
the respondent’s 25 years of service. Neither did he know the
salary of each candidate as compared to that
of the respondent. He
denied that the respondent’s costly salary compared to others
played a role in the decision not to
appoint him.
[19]
Ms Marina Uys was the Human Resources Consultant for Western Cape
area. She was involved in the administration, consultation
process
for restructuring and logistics around the interviews that had to be
set up. She was also present at the consultation meetings
that took
place on 6 and 12 August 2010. She was however not part of the
selection panel and therefore is unable to comment on
the comparison
between Van Staden, Fortran, Visagie and the respondent with regard
to years of service, experience and qualifications.
After arranging
for interviews, her involvement was to prepare letters on the
instructions of Lange to be sent to both successful
and unsuccessful
candidates.
[20]
Ms Uys confirmed that the respondent was unsuccessful, and she
communicated with him telephonically as he was on leave at the
time.
She testified that if she “
remembered correctly
”
she phoned the respondent “
just asking if he [had] seen that
there [were] positions available on the ABSA intranet that could be
suitable to him. He enquired
about the location and I informed him
that it was in Johannesburg, all the positions and ABSA Towers if I
remember correctly and
he then said no and I asked if I should pursue
this and he said no it is not necessary because it is in Johannesburg
so he don’t
see it as a suitable alternative”
. She
confirmed that Cape Town was a small office and it did not have
sufficient positions as compared to Johannesburg. She further
testified that the respondent never mentioned “
bumping
”
to her, neither did he complain to her about LIFO. Under
cross-examination, she could not recall if the respondent told
her
that the reason why he could not accept the position in Johannesburg
was because he had a daughter in matric and could not
move at that
moment.
[21]
The respondent challenged the experience and capacity of the three
people who were appointed to the positions that were advertised
as
compared to him. He had been in ASM for 10 years until he was
promoted to the position of operations manager function. He mentioned
that, Van Staden was not doing any management responsibilities but
purely service coordination functions with service delivery
teams.
Schalk reported to the respondent as an Availability Service Manager
on the Sanlam account. As his Operations Manager he
had to mentor and
coach him and according to him there was a wide area of development
that Schalk still needed. He testified further
that Fortran always
struggled as ASM and was a good service delivery manager but needed
improvement in logistics and financial
management.
[22]
The respondent testified that after the interview he was called by
Lange who informed him that he did not make it because he
had a bad
interview without elaborating on what he meant. Lange and Uys at a
later stage told him that there was a position at
ABSA in
Johannesburg and he told them that due to his personal circumstances
with his children he was unable to relocate at that
point in time.
Had they spoken to him after his daughter had finished matric he
would have considered that position. He did not
raise the issue of
bumping with the appellant’s officials because he was not aware
of that possibility at the time.
[23]
The respondent did not understand why he did not get any of the
positions as he was more qualified than the others and asked
for
scoring awarded in the interviews. Lange refused to provide him with
the scoring report or record. Although he accepts that
there was a
financial difficulty faced by the appellant he held the view that he
could have been selected for retrenchment because
he carried a bigger
salary package compared to others. He was never approached for a
discussion on salary reduction. He testified
that it had been
difficult to find other employment in Cape Town, Eastern Cape,
Bloemfontein and Johannesburg. He had however been
offered a position
by an IT company and was on probation, earning a salary of R23 000.00
a month. He was seeking reinstatement.
[24]
Under cross-examination, the respondent testified that his main
challenge to his dismissal was that the selection criterion
was not
correctly applied. He could not understand why he was not appointed
as he was well qualified for the positions. He did
not have any
problem with the selection criteria
per se
as it was agreed
upon.
[25]
In evaluating the evidence, the court below recorded that, the
material dispute that it had to consider was whether the dismissal
of
the respondent was for a fair reason taking into account in
particular, whether the appellant had met the
onus
of proving
that selection criteria were fair and objective. The court having
remarked that substantive fairness requirements set
out in section
189(7) provides that employers must select employees to be retrenched
according to criteria that have been agreed
upon by the consulting
parties, or if no criteria have been agreed upon, criteria that are
fair and objective, found that there
was no such distinction found in
section 189A. The court below then held that:
“
Simply
put, to pass muster, the selection criteria applied in large scale
retrenchment must be fair and objective”.
[26]
The court below continued that it was not necessary to consider
whether there was in fact ulterior motive for the non-appointment
of
the respondent to one of the positions available because there was no
discernible objective criteria that were used to select
the
candidates on the appellant’s own case. The court below
continued thus:
“
The
method of selection on [appellant’s] own version at trial was
based on the subjective feelings of the panel as to the
way in which
the candidates performed at the interview. Selection was not based on
‘an objective scoring process and interview’
as claimed
by the [appellant] and reflected in the pre-trial minute. I find
therefore that the dismissal of the [respondent] was
substantively
unfair
”.
[27]
As regards the remedy, the Labour Court held
inter alia
, that
the position the respondent occupied was abolished during the
restructuring process and that it was not possible to restore
the
employment contract, and that compensation was the appropriate
remedy. The Labour Court noted that the respondent received
an
equivalent of 5.83 months of salary and part of his severance
package. The court recorded further that it does not take into
account the fact that the respondent indicated that he was not
interested in the position on the appellant’s intranet based
in
Johannesburg as it was not the appellant’s case that he was
offered that position, but merely informed of the vacancy.
In
conclusion, the court below ordered the appellant to pay the
respondent an amount equivalent to six months of his salary at
the
time of his dismissal plus costs. In computing the amount of
compensation, the Labour Court took into account the extent to
which
the appellant failed to apply a fair selection criteria, the long
service of the respondent and his efforts to mitigate his
loss.
[28]
In this Court, it was contended on behalf of the appellant that the
parties had agreed to a particular process that was to
be followed
namely, that all posts in the new structure would be fully defined,
described and then advertised; all employees would
then apply for the
posts they were interested in; employees shortlisted for the posts
applied for would be interviewed by an interview
panel; the interview
panel would determine which employee it considered best suited for
the post applied for; the person found
to be best suited will be
appointed to that post; the employees not appointed by the interview
panel would be considered for alternative
positions elsewhere in the
appellant and; the employees who are then not accommodated in such
alternative positions would be retrenched.
It was contended that in
essence the respondent agreed to the process and method of selection
and only disagrees with the outcome
which is simply a matter of his
opinion.
[29]
It was further argued that the respondent’s opinion does not in
itself render the selection unfair as the appellant was
entitled in
terms of the agreement, to conduct the selection as it happened. As
such, goes the argument, the respondent clearly
waived any reliance
on fair and objective criteria.
[30]
The first issue for consideration in this appeal is the selection
criterion applicable in determining employees that were to
be
retrenched. The respondent contended in the court below that the
agreed selection criteria were not properly applied by the
appellant.
He argued that had the agreed selection criteria been properly and
fairly applied he would not have been retrenched.
[31]
Section 189(7) of the Act provides that 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, criteria that are fair and objective. This
Court in
Super
Group Supply Chain Partners v Dlamini and Another
[3]
had
the following to say:
“
It
is trite that an employer is permitted to dismiss an employee for its
operational requirements. However, for the employer to
do so
successfully, it is obliged to have a bona fide economic rationale
for the dismissal and to comply with the provisions of
s 189 as well
as s 189A of the Act where applicable. Section 189 imposes an
obligation on the employer to consult the employee
or its
representative on the matters listed in subsection (2). There is a
duty on the employer not only to consult the affected
employee(s) but
to take appropriate measures on its own initiative to avoid and
minimise the effect of the dismissal. The consultation
envisaged by
the Act is a 'meaningful joint consensus-seeking process' in which
parties to the process should attempt to reach
some agreement on a
range of issues that may best avoid the dismissal and where not
possible to ameliorate the effects of the dismissal
for operational
requirements.”
[4]
[32]
Section 189A(19) of the Act provides that:
“
In
any dispute referred to the Labour Court in terms of section 191 (5)
(b) (ii) that concerns the dismissal of the number of employees
specified in subsection (1), the Labour Court must find that the
employee was dismissed for a fair reason if-
(a)
the dismissal was to give effect to a requirement based on the
employer's economic,
technological, structural or similar needs;
(b)
the dismissal was operationally justifiable on rational grounds;
(c)
there was a proper consideration of alternatives; and
(d)
selection criteria were fair and objective.
“
[emphasis provided]
A
view was expressed that since reference is made to the selection
criteria that were fair and objective, the parties are precluded
from
agreeing on selection criteria to identify employees to be
retrenched.
[33]
In my view, there is no justifiable reason why s189 (7) should not
apply to dismissals referred to in section 189A. The two
sections
must be read together since they both apply to dismissals for
operational requirements. Further, the overall obligation
imposed by
the two sections is for consultation on the matters referred to in
s189. It is also significant to note that s189A process
is initiated
by the very same s189(3) notification issued for retrenchments. The
items that form the subject of consultation are
only listed in
s189(2) which include the method for selecting employees to be
dismissed. Such a provision is not found in s189A.
[5]
Furthermore, the objective of the process in both provisions remains
one of ‘
meaningful
joint consensus seeking’
.
It would therefore make no sense to prohibit consulting parties from
reaching agreement on the selection criteria in cases of
mass
retrenchments and only allow it in retrenchments not covered by s189A
when the object in both sections is ‘
meaningful
joint consensus seeking process
.’
Reaching agreement on the selection criteria should rather be
encouraged instead of being discouraged because the purpose
is where
possible, to avoid no-fault dismissals and where not possible
ameliorate the effects thereof.
[34]
It would not make sense to declare a selection criterion agreed to by
the parties unfair only because it was agreed to and
that it does not
comply with the requirement of being fair and objective as stipulated
in s189A. If the consulting parties are
precluded from agreeing on
selection criteria it would mean that it shall be in the prerogative
of the employer in all mass dismissals
under s189A to decide on
selection criteria and his or her selection would be insulated if it
is found to be fair and objective.
That in my view cannot be the
object of the Act which seeks to encourage
inter
alia
,
consultation, fairness, participatory engagement and openness.
[6]
The same test that applies in assessing the fairness or otherwise of
a retrenchment under s189 should not be different from the
retrenchments under s189A except on the additional obligations
imposed by s189A.
[7]
In my view,
the court
a
quo
erred in so far as it may have found that s189A should be interpreted
to limit the method for selection to criteria that are fair
and
objective only.
[35]
Having found that nothing prevented the parties from agreeing to a
selection criteria as they did in this case what needs to
be
determined is whether the agreed selection criteria was applied. To
recap, the selection criteria agreed to were (a) skills
knowledge,
and/or (b) relevant qualifications and experience and/or (c) years of
service. The s189(3) notice stated expressly that
“
this will
be used to identify the employees who might be affected by the
possible reduction in headcount. The business unit may
consider any
additional selection criteria that are proposed during the course of
the consultation by you. The criteria the parties
then agreed to will
be used to identify those who might be affected by the possible
retrenchment
”. It is common cause that there was no
additional selection criteria agreed to by the respondent’s
business unit and
as such the criteria proposed in the s189(3) was
applicable.
[36]
The appellant bore the
onus
to prove that the agreed selection
was applied and that its application was done fairly. Strydom who was
one of the selection panellists
was called specifically to deal with
the process followed. When he gave evidence in chief he appeared not
to have been alive to
the agreed selection criteria. He testified
that the selection panel did not apply years of service as criterion.
Although he later
during cross-examination suggested that regard was
had to years of service, he conceded that the panel did not establish
how many
years of service each candidate were credited with. Neither
did the selection panel interrogate the candidates’ credentials
in respect of the itemised requirements stipulated in the job
specifications. Further, the selection panel did not conduct a
comparative
exercise of the candidates’ credentials. Although
the appellant’s case in the pre-trial minute was that the
candidates
were subjected to an objective scoring process and
interview, the particulars and results of such scoring process were
not available
despite the respondent’s specific challenge to
the process. There was no evidence of the particulars relating to the
questions
and weighting or ranking given to the questions or elements
for consideration. It was later conceded that no numerical scoring
was made by any of the panellists.
[37]
In my view, the appellant has failed to show on a balance of
probabilities that the agreed selection criteria were applied.
On the
contrary, the appellant has shown that it applied a selection
criteria which was not agreed or based, according to Strydom,
on”
track records, and performance at the interview”.
There
was an obligation on the selection panel to apply the agreed
selection criteria and do so fairly. There was no agreement between
the consulting parties that the selection panel had the so-called
“blank cheque” to decide how and on what basis were
the
candidates for dismissal to be identified. By agreeing to the
interview process, the respondent cannot be said to have waived
his
right to have the agreed selection criteria applied. The appellant’s
evidence to the effect that he was best suited to
be appointed if the
selection criteria agreed to were applied was not controverted.
According to him, he had more experience and
was senior to those
appointed. None of the appellant’s witnesses could testify
otherwise since they did not interrogate the
experience of the
candidates. In fact, according to Strydom, he took it that the agreed
selection criteria had already been applied
when the candidates were
selected for interviews. His assumption was a mere speculation since
no credible evidence was presented
to that effect.
[38]
Even on the narrow approach that the appellant had to show that the
selection criteria was fair and objective, the court below
was in my
view correct in finding that the selection criteria was, on
appellant’s version, based on the subjective feelings
of the
panel as to the way in which the candidates performed at the
interview and was not based on an “objective scoring
process
and interview” as claimed by the appellant and reflected in the
pre-trial minute. Furthermore, the selection panel
may not have had
the final say since some of its recommendations were changed by the
Regional Executive. No evidence was tendered
to explain the reasons
and circumstances why the recommendations had to be changed. I
therefore find that the dismissal of the
respondent was substantively
unfair and the appeal should be dismissed.
[39]
It was contended on behalf of the appellant that the court
a quo
erred when it found that the position that the respondent was
informed about in Johannesburg was not taken into account because
it
was not offered to him. It was submitted that it was the respondent
who had difficulty with this position as he was not prepared
to
relocate from Cape Town to Johannesburg, and that no mention was made
during the trial that the position was not a genuine offer
or that it
was not a very real possibility of alternative employment.
[40]
The respondent’s evidence was that Uys who was assisting in
taking the retrenchment forward and was assisting him with
the
relevant financial and pension fund arrangements mentioned that there
was a position on the intranet in Johannesburg. He testified
that
Lange also told him that he was unsuccessful and told him about this
position. He informed them that he was unable to relocate
at that
point in time since he had just gone through a divorce process and
his daughter was in matric at the time. His circumstances
were well
known to his employer. After that there was no further interaction
with him about the said position. He mentioned further
that his
daughter completed her matric in the same year and as such his
circumstances changed.
[41]
It is notable that in terms of paragraph seven of the s189 notice
presented to the respondent, the appellant undertook to assist
employees likely to be retrenched in seeking alternative positions
either within the appellant or with another company. However,
the
respondent was merely informed of the existence of the position in
Johannesburg without being offered the position. No details
pertaining to that position were communicated to him. Although the
respondent did not reject that position but reminded them of
his
personal circumstances, he was nevertheless dismissed on 12 July 2010
being four days later after the telecommunication with
Uys. It also
not correct as it was submitted on behalf of the appellant that the
respondent withdrew from the consultation process
therefore making it
impossible for the appellant to consult him on alternative
employment. It is common cause that upon the respondent’s
return from his prearranged holiday he was required to work from home
for a month before his retrenchment. The court
a quo
‘s
conclusion that the respondent was not offered but merely informed of
the existence of the position on the appellant’s
own version,
cannot, in my view, be faulted.
[42]
I now proceed to consider the cross-appeal. The respondent contended
that the court below erred in fact and in law in determining
that it
was not possible to restore the employment relationship between the
appellant and the respondent. It was submitted that
the term
“reinstate” as provided for in s193(2) of the Act should
not be limited to the restoration of the employment
relationship into
a specific post previously occupied by an employee. The term, it was
argued, allows for the reinstallation or
re-establishment of the
contractual employment relationship on the same terms and conditions
of employment that prevailed prior
to the unfair dismissal. It was
further contended that even in circumstances where the respondent’s
previous post was abolished
and even where it is found that
reinstatement is not possible to that specific post, the court
a
quo
erred in not applying the other primary statutory remedy
available, namely “re-employment” as provided for in
s193(2)
of the Act.
[43]
It is in my view appropriate to record what remedy the respondent
sought in the court
a quo
in order to put the cross-appeal in
its correct perspective. In the reply to the appellant’s
statement of claim the relief
sought by the respondent is
“
re-instatement of his contract of employment and
compensation to the maximum provided for in the Labour Relations
Act.
” In the pre-trial minute the relief sought is
“
reinstatement; and or compensation
”. In the court
a quo
the respondent testified that “
Yes I seek
reinstatement and compensation for…
”
[44]
By seeking reinstatement the respondent wanted the Labour Court to
put him back into the same job or position he occupied,
on the same
terms and conditions, before his dismissal.
[8]
He wanted to be placed back in his position as if he was never
dismissed.
[9]
The court
a
quo
considered his request and found that it was not possible to restore
the employment contract because the position he occupied was
abolished as part of the restructuring process. By this finding the
court below found that it was impractical to reinstate the
respondent
and awarded him compensation. In short, the court did not deviate
from what the respondent requested and although it
could not give him
the first price he demanded the court gave him what he prayed for in
the alternative.
[45]
In essence, the purpose of the cross-appeal is not necessarily
directed against the court
a
quo
’s
finding that reinstatement was not possible in the circumstances of
the case but that the court
a
quo
should have ordered that he be re-employed as the other remedy
available to him. It is clear, without any doubt whatsoever, from
the
record of the appeal that the respondent never requested that he be
re-employed. Neither did he present any evidence whatsoever
on the
position and terms of re-employed he requires. It is only a claim
that he makes out in the appeal process without affording
the
respondent an opportunity to deal with his claim. The court
a
quo
which is accused of having erred did not have the opportunity to
consider re-employment as an option simply because that was never
part of the respondent’s case before it. It is improper for the
respondent to use the appeal process to introduce a new claim.
Such
practice should not be countenanced.
[10]
[46]
Re-employment claim would suffer the same fate as reinstatement in
the circumstances of this matter. The respondent’s
position has
been abolished and Lange who was the regional manager was retrenched
as part of further restructuring. It is common
cause that there was a
need for the appellant to restructure as it experienced financial
hardships. There is no evidence to suggest
that respondent could be
accommodated in any other position as re-employment in the Western
Cape as it was never canvassed. Consideration
of re-employment would
also require at this very late stage a revisit of the entire
selection process. The selection process has
already taken place and
the appellant has come to terms with the result thereof and
structured its business accordingly. The respondent
on the other hand
has been compensated for the unfairness that he suffered.
[47]
It is not necessary for this Court to define what re-instatement
means. We are bound by the definition ascribed to the term
by the
Constitutional Court in the
Equity Aviation
matter that:
“
[36]
The ordinary meaning of the word 'reinstate' is to put the employee
back into the same job or position he or she occupied before
the
dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes. It
is aimed at
placing an employee in the position he or she would have been but
for the unfair dismissal. It safeguards
workers'
employment by restoring the employment contract. Differently put, if
employees are reinstated they resume employment on
the same terms and
conditions that prevailed at the time of their dismissal
.”
[11]
[48]
In the result, the cross-appeal must fail. It would be in accordance
with the requirements of the law and fairness that there
be no order
as to costs. The following order is consequently made:
1.
Both the appeal and the cross-appeal are
dismissed.
2.
There is no order as to costs.
______________________
Tlaletsi
ADJP
Waglay
JP and Coppin AJA concur in the judgment of Tlaletsi ADJP
APPEARANCES:
For
Appellant:
Mr S Snyman
Snyman
Attorneys
For
Respondent:
Mr Louis van Zyl
Louis
van Zyl Attorneys
[1]
His
remuneration package was R45 617-42 per month together with a fuel
allowance of R1 500.00 per month and a cell phone allowance
of
R650.00 per month.
[2]
66 of 1995.
[3]
Super
Group Supply Chain Partners v Dlamini and
Another
(2013) 34 ILJ 108 (LAC) at para 24.
[4]
Ibid
para [24]
[5]
See
De
Beers Group Services (Pty) Ltd v National Union of Mineworkers
(2011) 32ILJ1293 (LAC) at paras 31-32.
[6]
Section
1 of the Act provides that:” The purpose of this Act 3 is to
advance economic development, social justice, labour
peace and the
democratisation of the workplace by fulfilling the primary objects
of this Act, which are-
(a)
to give effect to and regulate the fundamental rights conferred by
section 27 of
the Constitution; 4
(b)
to give effect to obligations incurred by the Republic as a member
state of the
International Labour Organisation;
(c)
to provide a framework within which employees and their trade
unions, employers
and employers' organisations can-
(i)
collectively bargain to determine wages, terms and conditions of
employment and other
matters of mutual interest; and
(ii)
formulate industrial policy; and
(d)
to promote-
(i)
orderly collective bargaining;
(ii)
collective bargaining at sectoral level;
(iii)
employee participation in decision-making in the workplace; and
(iv)
the effective resolution of labour disputes.”
[7]
See
Chemical
Energy Paper Printing Wood & Allied Workers Union v Astrapak
Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics
(2012) 33 ILJ 2386 (LC) at para114;
National
Union of Mineworkers v De Beers Group Services (Pty) Ltd and Another
(2009) 30 ILJ1880 (LC);
National
Education Health and Allied Workers Union on behalf of Members v
National Home Builders Registration Council
(2011) 32 ILJ 365 (LAC);
Continental
Tyre SA (Pty) Ltd v National Union of Metalworkers of SA
(2008) 29 ILJ 2561 (LAC).
[8]
Section
193(1) and (2) provides that: (1) If the Labour Court or an
arbitrator appointed in terms of this Act finds that a dismissal
is
unfair, the Court or the arbitrator may-
(a)
order the employer to reinstate the employee from any date not
earlier than the
date of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee
was employed before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date
of dismissal; or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a
continued employment
relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the
employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.
[9]
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
& Arbitration and Others
[2008] ZACC 16
;
2009
(1) SA 390
(CC) at para 36,
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing and Textile Workers Union and
Others
(2012) 33 ILJ 160 (LAC) at para 26.
Dunwell
Property Services CC v Morgan Sibande and Others
(2011) 32 ILJ 2652 (LAC) at para 30.
[10]
In
Mediterranean
Textile Mills (Pty) Ltd
(
supra
)
this Court held that: “Needless to mention that the appeal
court is not a forum to consider issues which were not raised
in the
pleadings or dealt with by the trial court, save in exceptional
circumstances such as those involving legal issues, where
this is
found to be appropriate and not unfair to the other party. In
Road
Accident Fund v Mothupi
,
the Supreme Court of Appeal stated:
'Subject
to what is said below, a Court will not allow a new point to be
raised for the first time on appeal unless it was covered
by the
pleadings... A party will not be permitted to do so if it would be
unfair to his opponent (cf
Paddock
Motors (Pty) Ltd v Igesund
1976 (3) SA
16
(A) at 23D-H;
Bank of Lisbon and
South Africa Ltd v The Master and Others
1987 (1) SA 276
(A) at 290E-H). It would be unfair to the other
party if the new point was not fully canvassed or investigated at
the trial.”
At para [29].
[11]
At
para [36]