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[2008] ZALCJHB 36
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Motaung v Kwikspace Modular and Others (JR953/07) [2008] ZALCJHB 36 (17 June 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR953/07
In the matter between:
FOURIE
SIBUSISO MOTAUNG
Applicant
And
KWIKSPACE MODULAR
BUILDINGS (PTY)
LIMITED
1
ST
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION (CCMA)
2
ND
Respondent
TIMOTHY
BOYCE N.O
3
RD
Respondent
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This is an application to review and set aside the arbitration
award issued under case number GAJB 2650– 06, dated 2
nd
March 2007. In terms of the arbitration award the third respondent,
the commissioner found the dismissal of the applicant for operational
reasons to be both procedural and substantive fair.
Background facts
[2]
The applicant was initially employed by the first respondent
during May, 2000 as a store-man. He was during July 2001, promoted to
the position of assistant buyer. His duties as an assistant buyer
included amongst others requesting quotations for different materials
required to various suppliers and evaluating this quotations to
establish whether they are reasonable. At this stage the applicant’s
supervisor was Mr Mackenzi who passed away during August, 2002.
[3]
It is apparent that the applicant expected to take over from
Mackenzi not only because the position became available but also
because
he always acted in the position whenever his supervisor was a
way. The expectations of the applicant were not realized because Mr
Fourie was appointed into the position soon after the death of
Mackenzi. The position was according to the applicant not advertised
when Fourie was called back from retirement.
[4]
The applicant was clearly dissatisfied with the turn of events
and accordingly lodged a grievance against the step taken by the
applicant to fill in the vacant post. It would appear that as a
result of the grievance the employment of Fourie was terminated
and
Mr Nel of the human resource department was appointed.
[5]
The applicant complained that Nel did not have experience or
any qualification as a buyer. The applicant, at this stage worked as
an assistant buyer. Nel resigned during February, 2006 and Mr. Brink
was appointed as an acting senior buyer. The applicant complained
again that the appointment was made without advertising the position.
[6]
The applicant initially wrote a letter
complaining about his treatment and when no response was forthcoming
he then filed another
grievance. He indicated to Mr Ackerman, the
managing director that he believed that he was qualified to act in
the position of
the senior buyer. He also requested reasons why he
was not considered for the acting appointment.
[7]
The outcome of the grievance hearing was
that the respondent would follow its policy in the appointment of a
senior buyer.
This outcome was according to the applicant not
implemented as Mr Brink was still acting as a senior buyer by the 11
May 2006.
In following up the matter the applicant wrote another
letter requesting reasons why Brink was acting as a senior buyer. As
the
position was still not advertised by the 10 July 2006, the
applicant wrote another letter to the applicant enquiring about the
cause of the delay.
[8]
The position was advertised on 13 July 2006
and thereafter the applicant was invited to an interview on 10 August
2006. The applicant
was unsuccessful but was offered a position as a
buyer. The applicant rejected the offer and requested the reasons for
the non
appointment.
[9]
The reasons for the non appointment was
furnished in the letter dated 6
th
October 2006, wherein Fourie confirmed the discussion he had
with the applicant and stated the reasons for the applicant’s
unsuccessful application as being his lack of management competencies
including purchasing management experience, stores control
management
experience, management experience that included industrial relations,
supplier contract negotiations and health and
safety, general cost
control and financial management.
[10]
In the same letter Fourie further indicated
that due to business development the purchasing department was
re-structured to accommodate
the increased pressure on the purchasing
department.
[11]
On
the 6 October 2006, the respondent addressed a letter to the
applicant in which it noted that he had rejected the offer
to appoint
him as a buyer and further placed on record the discussions that the
applicant had with Ackerman in particular the intention
to
restructure the purchasing department to improve the functioning
thereof. The applicant was also informed that his position
has as a
result of the new structure fallen away and was replaced by the
senior position of a buyer. The applicant respondent in
an undated
letter where he confirmed that he had rejected the offer of the
position of buyer. The relevant part of the letter reads
as follows:
“
On 07 September
Mr. Ackerman approached me, and offered me the position of Buyer,
which was not advertised, and I did not apply
for, and also informed
me that my application for the position of Purchasing Manager was
unsuccessful. I declined the offer, and
asked Mr. Ackerman to provide
me with written reasons why I did not get the position of Purchasing
Manager, but he did not do so.”
[12]
On
24 October 2006, the respondent addressed a letter to the applicant
in which it advised the applicant as follows:
“
Dear Fourie
RE: RETRENCHMENT/
REDUNDENCY
I refer to your letter
dated 20 October 2006, in response to our communication dated 18
October 2006.
I also refer to your
discussion with Mr. Van den Berg on 20
October 2006, in
which you have confirmed that you do not accept the offer for the
position of Buyer, for the reasons stipulated
in your letter. You
have confirmed your decision, notwithstanding the fact that it was
explained to you previously that the recruitment
procedure does not
require advertising of positions in case of a restructuring.
You have been informed
previously that the position of Assistant Buyer is redundant due to
the restructuring in the department,
and as you have confirmed that
you do not wish to accept the alternative position of Buyer, you are
directly affected.
You are accordingly
invited to attend a consultation meeting in terms of Section 189 LRA
to consult with you on issues including:
1.
The reasons for the possible retrenchment and alternatives
thereto
2.
The timetable if retrenchment is unavoidable
3.
If retrenchment is unavoidable, the benefits and assistance
including severance pay if applicable
4.
Assistance in the process
The meeting will be
held on Thursday, 26 October, 2006 at 08h30 in the Kwikspace
boardroom.
Yours sincerely”
[13]
The applicant responded to the above letter and stated
the following :
“
Dear
Sir
ATTENTON: MR.
JOHAN ACKERMAN
Your letter dated 24
October2006, which I received on the morning of 20
th
of
October 2006, refers.
I wish to respond to
your offer as follows:
1.
The discussion I had Mr. van der Berg on 24 October,
2006, at 12h30, and not 20 October 2006, as your above letter
suggests.
2.
I emphatically deny that I ever told Mr. van der Berg
that I do not want the position of Buyer, and refer to various
correspondents
to yourself about this issue where I never stated that
I do not want the position.
3.
If indeed I did not want the position of Buyer I
would have categorically stated so in my correspondence to you,
and
therefore do not want your Mr. van der Berg to only suggest that
I said so.
4.
The dispute I have with the company is about
challenging the reasons why I was not appointed to the position of
Purchasing Manager,
which I refer to the CCMA.
5.
It would appear that the issue of restructuring is an
attempt to deviate from the actual dispute and cloud the issues, and
I am
going to argue this point at the CCMA.
6.
I, therefore, request that the issue of consultation be
attended to after the CCMA had disposed of the dispute.
7.
I reserve the right to respond to your entire letter at
the appropriate time, but this should not be interpreted as an
admission
of its contents.
Yours faithfully.”
[14]
The consultation meeting between the parties was held on 26
October 2006. Initially the applicant requested the postponement of
the meeting but after discussions it was agreed that the meeting
would continue and that the respondent would put its proposal on
the
table without requesting the applicant to respond thereto. The
applicant was however, afforded the opportunity to ask questions
of
clarity. The minutes of this meeting indicate that the applicant
confirmed his rejection of the offer of the position of buyer.
[15]
The applicant responded to the contents of the minutes in a
letter dated 30 October 2006, wherein he stated the following:
“
I have noted
the contents of the minutes of the above consultation meeting, but do
not agree with them. I need to point out that
I have never refused to
accept the position of Buyer, unless you provide correspondence from
me where I categorically stated so.
On this basis, it is not
fair and correct to state that the position “has been dealt
with and is rejected by the employee.”
As an alternative
to retrenchment, I am accepting the position of Buyer. Should you for
some reason proceed to retrench me,
it would be unfair not to pay me
severance pay. I have not had sufficient time to find a
representative as you only brought the
issue after the consultation
had commenced, and therefore request sufficient time to find one.”
[16]
The offer to the applicant for the position of buyer was
discussed again at the meeting held on 31 October 2006. The applicant
indicated
that before he could accept the position he needed to see
its job description. When the respondent indicated that the position
of the buyer would entail more responsibility, the applicant
indicated that he was not prepared to accept the position of buyer
and that he would rather be retrenched.
[17]
On 31
st
October 2006, the respondent issued the
applicant with the retrenchment notice in which the applicant was
advised that his employment
would be terminated on the 30 November
2006. Thereafter, the applicant referred an alleged unfair dismissal
dispute to the second
respondent (the CCMA).
Grounds for review
and the ward
[18]
The
applicant in his founding
affidavit raises six grounds of review.
[19]
The first ground of review is the complaint that the
respondent was represented by an attorney whereas the applicant was
not. In
this regard the applicant complains that he was not offered
an opportunity to obtain the services of an attorney nor was the
matter
postponed to afford him an opportunity to seek the assistance
of an attorney.
[20]
The second ground concerns the allegation that the
commissioner was biased in that he intervened whenever the applicant
asked questions
to the respondent’s witnesses.
[21]
The third ground concerns the allegation that the commissioner
accepted the version of Ackerman regarding the meetings he alleged
to
have held with the applicant, despite denials of such meetings.
[22]
The fourth ground is that the commissioner failed to take into
account failure by the respondent to explain why the position of the
applicant had become redundant.
[23]
The sixth ground is that the commissioner failed to take into
account the fact that the applicant was required to sign a letter of
appointment for a position he (the applicant) was not informed what
it entailed.
[24]
The commissioner found that the respondent held three
consultation meetings with the applicant and at the third meeting
which was
attended also by the managing director of the applicant,
Ackerman, the applicant was informed that he could still accept the
position
of buyer which was previously offered to him.
[25]
In his analysis of the evidence and argument the commissioner
found that the applicant was aware of the restructuring of the
purchasing
department well in advance and prior to his position being
declared redundant. The commissioner further found that the
applicant
rejected the position of a buyer, which was according to
him a promotion, despite it being repeatedly offered to him.
[26]
I now proceed to deal with the criticism
raised by the applicants against the award of the commissioner.
Legal
representation
[27]
Legal representation at the CCMA was prior
to the 2002 amendments regulated by sections 135 (4), 138 (4) and 140
(1) of the LRA.
The 2002 amendments repealed all these sections
and the CCMA was given the power to make rules regulating the right
of any person
or category of persons to represent any party in any
conciliation or arbitration proceedings in terms of s115 (2A) (k).
The
CCMA in exercising the powers given to it by s115 (2A) (k) of the
LRA made regulations which were published during April 2004. Rule
25 provides:
“
In
any arbitration proceedings, a party to a dispute may be appear in
person or be represented only by:
(1)
A legal practitioner,
(2)
A director or employee of the party and in the Close
Corporation a member thereof, or
(3)
Any member, office bearer or official of that party
registered trade union or a registered employer’s
organisation.
[28]
The important part for the purposes of the
present case is rule 25 (c) which reads as follows:
“
If
the dispute being arbitrated is about fairness of dismissal and the
party has alleged that the reason for the dismissal relates
to the
employees’ conduct or capacity, the parties, despite sub rule
(1) (b), are not entitled to be represented by a legal
practitioner
unless-
1.
“The commissioner and all the
other parties consent
;
2.
The commissioner concludes that it is unreasonable to expect a party
to deal with the dispute
without legal representation without
consideration-
a)
The nature of the question of law raised by the dispute;
b)
The complexity of the dispute;
c)
The public interest and
d)
The comparative ability of the opposing parties or their
representative to deal with the dispute”.
[29]
It is apparent from the above that as a
general rule parties are not entitled to legal representation in the
CCMA if the dispute
to be considered concerns the dismissal for
misconduct or incapacity. In all other disputes the parties are
entitled to legal
representation including as was the case in the
present matter dismissal for operational requirements.
Commissioner’s
bias
[30]
As indicated above the applicant complained
that the commissioner was biased because he intervened every time the
applicant asked
questions to the respondent witnesses.
[31]
In terms of s1358 of the LRA the
commissioner has the power to conduct the arbitration hearing in a
manner that he or she considered
appropriate in order to determine
the dispute fairly and quickly but must deal with the substantial
merits of the dispute with
the minimal legal formalities.
[32]
The perusal of the record does not reveal
any unfairness in the manner in which the commissioner conducted the
arbitration proceedings.
There are indeed instances in the record
that indicates the commissioner intervening during cross examination
by the applicant.
This intervention however was clearly for the
purpose of assisting and directing the applicant to focus on the
issues that were
before the commissioner. The commissioner
cannot be faulted for adopting the approach he did because by doing
so he was exercising
the powers given to him by s138 of the LRA and
he did so in a fair manner.
Dismissal and
Consultation
[33]
The provisions of s185 of the LRA, provides
general protection to employees from unfair dismissal. A dismissal of
an employee is
regarded as being unfair in terms Section 188 of
the LRA if an employer fails to prove that:
“
(a)
That the reason for the dismissal is for a fair reason
(i)
. .
(ii)
Based on the employer’s
operational requirements and;
(b)
That the dismissal was effected in
accordance with fair procedure.
[34]
In terms of s189 (1) of the LRA an employer
is required to consult with employees or their representatives when
it contemplates
a dismissal because of operational requirements. In
the consultation process both the employer and employees or their
representatives
are required to seek consensus on the appropriate
measures to avoid and to mitigate the adverse effect of dismissals
due to operational
reasons.
[35] In the consultation
process the employee also has a duty to corporate with the employer
with the view to seeking a solution
to either avoid the retrenchment
or minimize its impact. There is an established principle that the
law will not come to the assistance
of an employee who is
uncooperative and frustrates the consultation process.
[36] The test for review
as enunciated in
Z Sidumo and Another v Rustenburg Platinum Mines
Limited and Others (2007) 12 BLLR
1097
,
is that of a reasonable decision -maker. The test entails an
enquiry as to whether or not the decision of the commissioner of the
CCMA is one which a reasonable decision–maker could not reach.
In terms of this test the court is entitled to interfere with
the
decision of the commissioner only if it finds that the decision
reached by the commissioner is one which a reasonable decision-maker
could not reach.
[37] In the present
instance the commissioner correctly found, based on the evidence
before him that the employee was uncooperative
and unreasonable in
rejecting the position of a buyer which was in fact a promotion. In
my view the award cannot be said to be
unreasonable when regard is
had to all the circumstances of this case and the material which was
placed before the commissioner.
It is not for this court to determine
whether the decision of the commissioner was correct or not.
The role of this court
is to determine whether or not the decision
was reasonable. Thus, there is no basis for this court to
interfere with the
decision of the commissioner and accordingly the
application to review and set aside the decision of the third
respondent stands
to be dismissed.
[38]It seems to me that
it would not be unfair to order costs to follow the results.
[39]In the premises, the
following order is made:
1.
The application is dismissed.
2.
There is no order as t costs.
_______________
MOLAHLEHI
J
DATE
OF HEARING :
05
DECEMBER 2007
DATE
OF JUDGMENT :
17 JUNE 2008
APPEARANCES
FOR
THE APPLICANT : SIBUSISO MOTAUNG (IN PERSON)
FOR
THE RESPONDENT: ATTORNEY M VAN STADEN OF SAVAGE JOOSTE &
ADAMS INC.