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[2016] ZALAC 7
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RP Logistix (Pty) Ltd v Transport and Allied Workers Union of South Africa (TAWUSA) and Others (JA48/14) [2016] ZALAC 7 (4 March 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA 48/14
In the matter between:
RP
LOGISTIX (PTY)
LTD
Appellant
and
TRANSPORT AND ALLIED
WORKERS UNION
OF
SOUTH AFRICA (TAWUSA)
First
Respondent
D
TSHABALA AND 54 OTHERS
Second
and further Respondents
Heard:
05 May 2015
Delivered:
04 March 2016
Summary:
Voluntary retrenchment – employer relocating his business –
employees incurring further
traveling expenses - union requesting
employer to reimburse employees for their extra traveling expenses –
employer unwilling
to do so - union then proposing employer pays
extra traveling expenses or retrenches employees – employer
electing to retrench
employees – union disputing that any
agreement on voluntary retrenchment entered into – proposal
made by union not
a serious offer – employer acting
opportunistically for not accepting union’s withdrawal of the
proposal – no
evidence of a conclusive agreement between the
parties. Labour Court’s judgment upheld - Appeal dismissed.
Coram: Landman,
Sutherland JJA
et
Mngqibisa-Thusi AJA
JUDGMENT
LANDMAN
JA
[1]
The appellant, RP Logistix (Pty) Ltd, appeals with leave of the
Labour Court (Prinsloo AJ) against the whole of her judgment
delivered on 11 February 2014 in which she found that the appellant
and the first respondent, Transport and Allied Workers Union
of South
Africa (TAWUSA) acting on behalf of its members, the second and
further respondents (the respondents), had not reached
an agreement
that they be retrenched and that consequently their dismissals were
unfair.
The
facts
[2]
The facts presented to the court
of quo
fall within a narrow
compass. Only two witnesses testified. Ms Masinamela, a HR
specialist, who kept detailed minutes of her meetings
with the union,
testified while Mr. Tshabalala, a shop steward, testified for the
respondents (applicants in the court
a quo
).
[3] The appellant’s
operations were located at a depot in Alrode. It sought to curb its
expenses by exploring an option of
renting less expensive premises in
nearby Germiston. But, eventually, it relocated its operations to
Isando; 25 kilometres away
from Alrode. This meant that the
appellant’s drivers were required to travel a further 25
kilometres to work each day. This
was a source of concern for the
drivers. They wished to be reimbursed for their extra travelling
expenses.
[4] Ms Masinamela and
other company’s representatives met with Mr. Madolo, a union
official, Mr. Tshabalala and Mr. Nxolwana,
shop stewards, on 23
February 2012. Two items were on the agenda. The one related to the
retrenchment of two controllers. The other
was: `Retrenchment or
transfer with Imperial Group (Jhb)’.
[5] Mr. Madolo wanted the
appellant to agree to reimburse the drivers for their extra
travelling expenses. After some discussion,
Mr. Madolo stated that if
the appellant was not prepared to reimburse the drivers for their
extra travelling costs, he had a mandate,
meaning a proposal, that
the company should retrench “all the drivers” in the
company. He went on to say that the workers
have provided three
mandates (proposals), namely:
·
Pay
extra money for travelling costs; or
·
Retrench
all of them; or
·
They
will have a dispute on all the issues.
[6] Ms Masinamela replied
that the appellant was not in a position to respond immediately to
these proposals. Mr. Madolo said that
the union required a response
by the next day because a general meeting was to be held on the
forthcoming Sunday. The members of
the union would need to know what
management’s response to the proposals would be so that they
could decide what to do. Ms
Masinamela agreed to respond by letter on
the next day.
[7] The appellant’s
response in its letter of 24 February 2012 began by summarising the
three union’s proposals and
then notified the union that:
“Management has considered all the above mandates and would
like to confirm that we accept
your mandate to retrench all employees
(TAWUSA members).” The letter then sets out the appellant’s
proposals relating
to the details of the retrenchment.
[8] The union met on
Sunday, 28 February 2012. It is doubtful whether Mr. Madolo made it
clear that it was the union and not the
appellant that proposed the
retrenchment of the drivers. Mr. Madolo formulated the employees’
response in the following way:
‘
We request
the company to comply with the rules of LRA by applying to the CCMA
for the total retrenchment of all our members in
RP Logistix (Pty)
Ltd Cape Town and Johannesburg.
The proposal we have addressed to
yourselves are not concluded yet they are still on the table may be
we might withdraw others in
the near future. We urgently need some
meeting in the near future.’
[9]
The appellant in turn informed the union by letter dated 29 February
2012 that it had accepted the proposal made by the union
on behalf of
its members. It pointed out that the position regarding Cape Town was
not discussed at the meeting on 23 February
and said that it only
accepted the voluntary retrenchment of all TAWAUSA’s members
based in Johannesburg.
[10]
Further meetings were held between the union and the appellant. The
union withdrew its proposal that all its members i.e. in
Johannesburg
and Cape Town be retrenched. But the appellant remained adamant that
the union had requested the retrenchment of all
TAWAUSA’s
members employed in Johannesburg and proceeded to retrench them on
the basis that their union had agreed to their
voluntary
retrenchment.
The
trial
[11]
The issue in the court
a quo
was whether the parties had
concluded a binding agreement that all the TAWUSA’s members
employed in Johannesburg would be
retrenched on a voluntarily basis.
[12] The court
a quo
found that no consensus had been reached and said:
‘
[72]
It is evident from the testimony that there was no agreement reached
between the parties and that
there was no consensus on the
retrenchments. The demand was for the retrenchment of all TAWUSA
members and on the respondents’
own version it never agreed to
this demand and was not prepared to retrench the Cape Town drivers.
[73] It is
further evident from the chronological sequence of events that as
from 23 February 2012 until
12 March 2012 that the demand was made
but still subject to discussion, that it could be withdrawn at any
time and that it was
indeed withdrawn on 12 March 2012. At no point
was there consensus on the retrenchment.’
[13]
As the court
a quo
found that there was no agreement, the
dismissal was found to be unfair.
The
appellant’s grounds of appeal
[14]
Mr. Van der Riet SC, with him Mr. Roodt, appeared for the appellant.
He submitted that the court
a quo
had come to its conclusion
based on two errors of facts. These are contained in paragraphs 67
and 69 of the judgment. In essence,
it is submitted that the court
a
quo
erred (a) in finding that on 23 February 2012, the union
proposed the retrenchment of all TAWUSA’s members (i.e.
Johannesburg
and Cape Town members) and (b) that Ms Masinamela agreed
that there was no final agreement on (or as at) 1 March 2012. I turn
to
discuss them in turn.
Did
the union propose on 23 February that Johannesburg and Cape Town
members be retrenched?
[15]
When the parties met on 23 February 2012, they were dealing with an
issue that only affected the Johannesburg’s drivers.
In this
context, the proposal made by Mr. Madolo that “the company must
retrench all drivers in the company” could
reasonably be
understood to be restricted to TAWUSA’s drivers employed at
Isando. The Johannesburg’s drivers had further
distance to
travel to work; not their Cape Town counterparts. It could not
reasonably be understood that Cape Town’s members
would be
included in the phrase “all TAWUSA members”. The minutes
set out the backdrop to the proposal and how it was
interpreted. I am
satisfied that the proposal made by Mr. Madolo was, in its context,
restricted to the Johannesburg’s members
of his union.
Is
it correct that there was no agreement in place on 1 March?
[16]
On the appellant’s version (as pleaded), the acceptance of the
proposal or offer took place on 24 February 2012 so that
there was an
agreement in place on 1 March. This was the evidence of Ms
Masinamela. But the primary question is whether the proposal
made by
Mr. Madolo at the meeting on 23 February 2012 was meant and
understood to be an offer which if accepted became binding
as a
contract. There are three telling pieces of Ms Masinamela’s
testimony that decisively demonstrate that Mr. Madolo’s
proposal was not a contractual offer.
[17]
The first is Ms Masinamela’s disbelief when she heard that Mr.
Madolo articulated the offer. She stared at the two shop
stewards in
disbelief (and suggested they caucus). The second is her appreciation
of the motive and nature and significance of
the offer. Under
cross-examination, she said that she expected the union to return
from its meeting on Sunday and reject the appellant’s
acceptance of the proposed retrenchment. The third is that she
accepts that the union members would be entitled to object to the
appellant’s stance i.e. its acceptance of the offer. She said
that Mr. Madolo “is going to take our response to the
employees
for a further mandate.”
[18]
All this shows that the appellant knew that Mr. Madolo was posturing
i.e. postulating an exaggerating response to a possible
refusal to
reimburse the drivers for their traveling expenses. But,
notwithstanding her appreciation of the situation and that
the
proposal was akin to an opening gambit and not a serious offer, the
appellant was quick to snatch at a bargain. And having
snatched at
the bargain it would not let go.
[19]
The offer of retrenchment was appealing to the appellant because it
had lost a contract, was experiencing financial pressure
and it
believed that any agreement on a travelling allowance would be
open-ended and a source of continued dissatisfaction amongst
the
drivers leading to a disgruntled workforce.
[20]
The union members’ response was not a climb down from the offer
but an escalation of the proposal to include even the
Cape Town’s
members in the proposed retrenchment. Mr. Madolo did not testify but
Mr. Tshabala’s evidence, to a leading
question by the union’s
counsel, was that if the appellant should insist on the retrenchment
then, and only then, the appellant
must also retrench the Cape Town’s
members. This nuanced approach indicating a rejection of retrenchment
is in conflict with
the union’s communication to the appellant.
Mr. Madolo’s written response was a counter offer which the
appellant did
not accept.
[21]
Mr. Van der Riet sought to counter the nature of the offer of 23
February 2012 by submitting that the events following that
offer led
the appellant to conclude that the offer was a serious offer. This
may possibly have been the case had the union repeated
its February
offer but it did not do so. There is no evidence and no grounds for
concluding that the offer metamorphosed from posturing
to a sound
serious offer.
[22]
It follows that, albeit for different reasons, the finding of the
court
a quo
, that there was no agreement that the
Johannesburg’s union members may be retrenched, remains
undisturbed.
[23]
Finally, Mr. Van der Riet submitted that the dismissal of the union
members was fair as the appellant retrenched them on account
of its
operational requirements.
[24]
It is so that the court
a quo
stopped the appellant from
leading evidence regarding the financial circumstances of the
appellant. I am of the opinion that the
court
a quo
correctly
restricted the appellant to the ambit of its pleaded defence. But, in
any event, there is no application to supplement
the record by
leading further evidence.
[25]
There is no merit in this submission. The reasons for retrenchment
were based squarely on the agreement. The operational reasons
were
not explored even when the union conceded that its proposals for
retrenchment were ill founded and withdrew them. In its statement
of
defence, the respondents deny that “the dismissals occurred
purely because of operational requirements”. The reasons
advanced during the trial indicate why the appellant snatched at the
bargain of a dismissal based on voluntary retrenchment but
they fall
short of an independent reason for the dismissals and, importantly,
an opportunity to interrogate the operational reasons
was denied to
the respondents prior to the dismissal of the Johannesburg union
members.
The
relief
[26]
In his heads of argument that were filed in addition/substitution of
the heads that had been filed previously and in his oral
address, Mr.
Van der Riet submitted that the court
a
quo
failed
to exercise its discretion properly when it ordered full
retrospective reinstatement. It is pointed out that section 193
of
the Labour Relations Act
[1]
confers a discretion on a court to order reinstatement “from
any date not earlier than the date of dismissal”.
See
also Equity Aviation Services (Pty) Ltd v CCMA and Others
[
2008]
12 BLLR 1129
(CC) at para 43.
[27]
Neither the appellant nor the respondents placed any evidence before
the court
a quo
about any income that the individual union
members may have received in the 22 months following their dismissal
save that Mr. Tshabalala
had found employment. It is, however,
correct that the union official bore some responsibility for the
events by suggesting retrenchment
and proposing an even wider
retrenchment even when his opening gambit led to the loss of his
queen. The shop stewards were also
not without blame they knew that
not only was Mr. Madolo not being serious with his proposal of
retrenchment but they knew he had
no mandate to make such an offer
and they did not disown his proposal. But ultimately it was the
appellant that went forward with
the dismissals.
[28]
Mr. Memani, who appeared for the respondents at the trial and on
appeal, asked for retrospective reinstatement at the close
of the
trial. In the absence of evidence, the court
a quo
was correct
in ordering retrospective reinstatement.
[29] In the premises, the
appeal must fail.
Costs
[30]
Mr. Memani sought an order for costs. In my view, as the contribution
of the union and the shop stewards to this debacle has
not yet been
taken into account, it is appropriate that no order be made as to
costs.
Order
[31] I make the following
order:
1.
The
appeal is dismissed.
2.
There
is no order as regards costs.
________________________
AA Landman
Sutherland
JA and Mngqibisa-Thusi AJA concur in the judgment of Landman JA
APPEARANCES:
FOR
THE APPELLANT:
Mr Van
der Riet SC and Adv Roodt,
Instructed
by AM Spies Attorneys
FOR
THE RESPONDENTS:
Adv Memani
Instructed
by Lennon Moleele and Partners
[1]
Act 66 of 1995.