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[2008] ZALCJHB 12
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Scheme Data Services (Pty) Ltd v Myhill NO and Others (JR1456/06) [2008] ZALCJHB 12 (10 December 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
REPORTABLE
CASE NUMBER: JR1456/06
In the matter between:
SCHEME
DATA SERVICES (PTY) LTD
Applicant
and
MYHILL
N.O, E
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
SIMPSON,
G Third
Respondent
JUDGEMENT
NGALWANA
AJ
Introduction
[1]
This is an application for the review and setting aside of the
decision of the first respondent
acting as commissioner in
arbitration proceedings convened by the second respondent under case
number GA37354/03. In his
award of 1 June 2006 the first
respondent found that the applicant had failed to show “good
reasons” for dismissing
the third respondent and that it also
failed to follow a fair procedure in doing so. He thus awarded
the third respondent
compensation equivalent to 7 months salary in
the amount of R86 100 and ordered the applicant to pay same
within 14 days of
receiving the award.
[2]
The third respondent’s employment with the applicant was
terminated for operational
reasons after 10 years of service. She
charged that the applicant had not followed procedure and the first
respondent found
in her favour. The applicant now seeks to have
the first respondent’s award reviewed and set aside.
[3]
In argument, Mr Snyman for the applicant submitted that since the
arbitration hearing, the
award and the filing of pleadings in this
case, matters have been overtaken by the decision of Acting Justice
Nel in
Rand Water v Bracks NO and Others
(2007) 28 2310 (LC) (“
Rand
Water
”). In that case, Nel
AJ found that in matters which concern the dismissal of a single
employee for operational reasons,
the CCMA has jurisdiction only
where the dispute centres on substantive fairness, and that where the
issue to be determined concerns
only procedural fairness the CCMA has
no jurisdiction and such matters must be referred to the Labour
Court.
[4]
It would seem that Mr Snyman contends for the proposition that since
the first respondent
lacked jurisdiction to arbitrate this matter on
the authority of the
Rand Water
judgement, his award ought to be set aside on that ground alone.
Mr Snyman pointed out that the
Rand
Water
judgement has been followed in
numerous rulings of the CCMA. Of course, that is to be expected
on authority of the principle
of precedent.
[5]
Mr AJ Nel (not to be confused with Nel AJ) for the third respondent
sought to persuade me
that Nel AJ’s judgement is clearly
wrong. That is the issue I am now called upon to decide.
[6]
Neither party indicated what would then happen in the event of a
finding that the
Rand Water
judgement was clearly wrong. Nevertheless, it seems to me
reasonable and in the interests of justice that in that eventuality
I
should go on to consider the review application on the grounds
advanced. I did not understand Mr Snyman to put all his
eggs in
the
Rand Water
basket, so that they would either hatch or rot with the basket.
He has submitted a comprehensive set of heads of argument
replete
with references to authorities on why the first respondent’s
award falls to be reviewed and set aside.
[7]
In light of the view I take of this matter, it is not necessary to
traverse in detail the
factual background from which the dispute here
arises. It is in my estimation sufficient to state only the
material facts.
Rand
Water
and the Issue of
Jurisdiction
[8]
It is my respectful view that
Rand Water
is clearly wrong in law. The Learned Judge reached his
conclusion by an interpretative measure. In so doing, the
Learned
Judge appears with respect not to have heeded his own caveat
which he expresses eloquently at paragraph [40] of the judgement
thus:
“
It
is true that the LRA must be interpreted purposively to give effect
to an expeditious resolution of labour disputes. However
it is
equally true that the concept of a purposive interpretation does not
allow the interpreter to ignore the wording of a statute
or to place
a construction thereon that is not reasonable having regard to the
wording.”
[9]
The Learned Judge is with respect quite correct. The trouble,
however, begins when
the Learned Judge ventures into what appears to
be a conscientious exercise of statutory interpretation, driven, it
would seem,
by considerations of a desire to spare CCMA commissioners
the headache or challenge of dealing with complexities that,
according
to the Learned Judge, only procedural issues arising from
dismissals on grounds of operational requirements may dish out.
In this vein the Learned Judge says (at paragraph [39] of the
judgement):
“
It
is in my view so that the question whether an employer had
substantive cause in support of its decision to retrench employees
by
reason of its operational requirements is more often than not
relatively clear-cut. I do not wish to suggest that one
will
not encounter instances where the substantive cause for the
employer’s alleged operational requirements may not be hugely
complex and heatedly disputed by the employee or employees and the
union representatives involved. It is however in my view
more
often in respect of the myriad of procedural obligations placed upon
an employer that the matter becomes factually intense
and significant
complexity is introduced, particularly in terms of the facts.
It then becomes rather challenging to determine
whether the employer
had complied therewith or not.”
[10]
There is, of course, nothing in the Labour Relations Act, 66 of 1995
(“the LRA”) that suggests
that the determination of
procedural fairness in section 189 dismissals of necessity entails
navigating through considerably more
complex issues than would be the
case when determining substantive fairness. I know of no
judicial precedent where such a
proposition was either decided or
given judicial imprimatur by judicial notice being taken of it.
[11]
Having thus determined that “more often . . . significant
complexity” arises in the determination
of procedural fairness
in section 189 dismissals, and warning of the dangers of departing
from statutory wording and placing unreasonable
constructions thereon
in the guise of purposive interpretation, the Learned Judge with
respect launches into an exercise of precisely
that of which he warns
and reaches the conclusion that he does. At paragraph [41] the
Learned Judge says:
“
The
court is enjoined, when interpreting a statutory instrument, to give
effect to all the words in the statute. If it was
the
legislature’s intention that if one employee only is dismissed
by reason of an employer’s operational requirements,
then the
CCMA will have jurisdiction, the relevant section clearly need not
have contained the words ‘following a consultation
procedure in
terms of section 189’. It must accordingly be determined
what the legislature intended by the insertion
of these words.
Having regard to the fact that the word ‘following’ may
mean either ‘subsequent to’
or ‘after’ as
well as bearing in mind that the phrase ‘in terms of’
means ‘in conformity with’,
it follows that the phrase
‘following a consultation procedure in terms of section 189’
could be interpreted to mean
‘subsequent to or after a
consultation process in conformity with section 189’.”
[12]
With respect, the construction thus put on section 191(12) of the LRA
by the Learned Judge cannot be
correct. It is in fact patently
wrong not least because it seems to suggest, by its excision of an
entire clause from the
section, that no consultation is required
where only one employee is sought to be retrenched.
[13]
Section 189 of the LRA deals with the procedure that must be followed
upon the dismissal of “one
or more employees” for reasons
based on the employer’s operational requirements, and section
189(1)(d) requires consultation
with an affected employee. In
these circumstances, it is not clear why the Learned Judge should
take the view that the legislature’s
intention in section
191(12) was to confer jurisdiction on the CCMA only where no
consultation is required as depicted by the clause
“following a
consultation procedure in terms of section 189”.
[14]
On a plain reading of section 191(12), it does not permit of the
construction placed on it by the Learned
Judge. The section
reads:
“
If
an employee is dismissed by reason of an employer’s operational
requirements
following a consultation
procedure in terms of section 189
that
applied to that employee only, the employee may elect to refer the
dispute either to arbitration or to the Labour Court.”
(My
italics)
[15]
The Learned Judge reaches the jurisdictional finding by excising or
severing the italicised clause
from the section. There is no
need for that because the plain wording of the section is clear and
it is this: an employee
who is dismissed for operational reasons is
free to refer the dispute – whether founded on procedural
fairness or substantive
fairness or both – either to the CCMA
or to the Labour Court. This option is given force also by
section 191(5)(b)(ii)
of the LRA to the same effect. That plain
meaning does not give rise to any absurdity and the Learned Judge has
not suggested
that it does. So why tamper with it?
[16]
Moreover, interpretative aides such as excision or notional
severance, striking down and reading in
become useful, and are
usually invoked by the Courts, only where the plain meaning of the
statutory provision would result in constitutional
invalidity.
These interpretative aides are usually invoked by our Courts in such
circumstances with a view to saving the
statutory provision in issue
from a declaration of constitutional invalidity. Such an
exercise is embarked upon not
in vacuo
but with a view to granting an appropriate remedy (pursuant to
section 38 of the Constitution) that is just and equitable (as the
Courts are enjoined to do by section 172(1)(b) of the Constitution)
(see, for example,
National Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
2000 (2) SA 1
(CC) at
paragraphs [61] – [88]).
[17]
The Constitutional Court has had this to say about the appropriate
remedy of the severance of words
from a statute:
“
The
severance of words from a statutory provision and reading words into
the provision are closely related remedial powers of the
Court. In
deciding whether words should be severed from a provision or whether
words should be read into one, a Court pays
careful attention first,
to the need to ensure that the provision which results from severance
or reading words into a statute
is consistent with the Constitution
and its fundamental values and, secondly, that the result achieved
would interfere with the
laws adopted by the Legislature as little as
possible.”
(
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
2000 (2) SA 1
(CC)
at paragraph [74])
[18]
In
S v Manamela and Another
(Director-General of Justice Intervening)
2000 (3) SA 1
(CC) the Constitutional Court reiterated the reasoning
of Ackermann J in the
Gay and Lesbian
Equality
case and said the following
about statutory interpretative tools (at paragraph [57]):
“
Reading
down, reading in, severance and notional severance are all tools that
can be used either by themselves or in conjunction
with striking out
words in a statute for the purpose of bringing an unconstitutional
provision into conformity with the Constitution,
and doing so
carefully, sensitively and in a manner that interferes with the
legislative scheme as little as possible and only
to the extent that
is essential. There is no single formula. In appropriate cases it may
be necessary to delete words from a provision
and read in other words
to make the provision consistent with the Constitution, where the
deletion of the words alone would result
in the declaration of
invalidity to an extent greater than that required by the
Constitution.”
[19]
In
Zondi v MEC for Traditional and Local
Government Affairs and Others
2005 (3)
SA 589
(CC) the Constitutional Court (per Ngcobo J writing for the
entire Court) cautioned against judges playing a legislative role in
these terms:
“
A
court should be reluctant to read in or sever words from a provision
if to do so would require the court to engage in the details
of
lawmaking, a constitutional activity that is assigned to
legislatures. Similarly, where curing a defect in the provision would
require policy decisions to be made, reading-in or severance may not
be appropriate. So too where there are a range of options
open to the
Legislature to cure a defect. This Court should be slow to make
choices that are primarily to be made by the Legislature.”
[20]
The Learned Judge in
Rand Water
did not proceed from the premise that section 191(12) of the LRA is
constitutionally offensive, and thus that the notional severance
of
the clause he excises from it is an appropriate remedy to rescue the
section from a declaration of unconstitutionality.
It does not
appear from the judgement that this was an argument that was advanced
before him either. In the circumstances,
the Learned Judge’s
legislative foray was with respect not only uninvited but also
mistaken. The result is an undesirable
and, with respect,
dangerous precedent of the suffusion of legislative function by
judicial musings of what the judiciary would
rather the law was.
[21]
It is for the Legislature, not the Labour Court or any other Court,
to decide where individual employees
dismissed on grounds of the
employer’s operational requirements should refer their disputes
in that regard. The LRA
clearly gives such employees a choice
of approaching either the CCMA (or bargaining councils) or the Labour
Court. It is
not for the Labour Court to decide that procedural
issues in section 189 dismissals are too complex for the CCMA or
bargaining
councils to handle, and so decree that such issues be
referred only to the Labour Court. That is a policy decision
that only
the Legislature must make. Clearly the Legislature
does not think procedural issues in section 189 dismissals of
individual
employees are too complex for CCMA or bargaining council
commissioners. That is why it enacted sections 191(5)(b)(ii)
and
191(12) of the LRA. If the Legislature should reconsider
the issue, then it is expected that it will amend the LRA
accordingly.
Judges cannot permissibly amend legislation for
it.
[22]
The scheme of the LRA is such that employment-related disputes must
be conciliated and arbitrated by the
CCMA or bargaining council with
the minimum of legal formalities (
section
138(1)
of the LRA). The idea is
that such disputes must be resolved reasonably expeditiously,
equitably and with minimum fuss and
posturing that sometimes goes
with litigation in the Higher Courts. The effect is that
indigent parties are not non-suited
or otherwise prejudiced simply
because they cannot afford a lawyer; and disputes are brought to
finality much quicker than would
be the case in the ordinary courts.
That is why there is a stipulated time period within which a dispute
must be referred
to the CCMA. In the case of unfair dismissal
referral must be made within 30 days of dismissal or of the final
decision in
that regard being made by the employer following an
internal disciplinary process (see
section
191(1)(b)(i)
of the LRA). In the
case of unfair labour practice referral must be made within 90 days
of the conduct constituting unfair
labour practice or of the date on
which the employee became aware of such conduct (
section
191(1)(b
)
(ii)
of the LRA). That is why there is
no appeal against the CCMA’s award, and an aggrieved party has
6 weeks within which
to seek to review the CCMA’s award in the
Labour Court (
section 145(1)
of the LRA).
[23]
In the result,
Rand Water
cannot stand. It is my respectful view that the judgement in
that case is plainly wrong on a plain reading of section 191(12)
of
the LRA. It is thus my view that the first respondent had
jurisdiction to arbitrate the dispute in this case.
The
Review on the Merits
[24]
The test for the review of awards of the CCMA is now settled.
What this Court needs to determine
is whether the decision reached by
the first respondent is one that a reasonable decision-maker could
not reach on the same facts
and evidence (
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC at paragraph [110]). In other words, the
standard is now one of reasonableness. If the answer
is in the
affirmative, then the award falls to be set aside.
[25]
The grounds of review in section 145(2) of the LRA are now “suffused”
by this constitutional
standard of reasonableness. That does
not mean, in my respectful view, that the section 145(2) review
grounds are to be regarded
as having been washed away by the
reasonableness standard. The better approach is that the
section 145(2) review grounds
must be construed with the
reasonableness standard as their backdrop.
[26]
Mr Snyman has referred me to numerous authorities on applicable
principles. It seems to me the
determination of this matter
centres on one issue and that is whether the applicant, in its
engagement with the third respondent,
consulted with her on the issue
of an alternative position in order to avoid retrenchment. The
applicant says it never raised
the issue of an alternative position
because there was none, and in any event the third respondent was not
interested in one.
This latter averment was sheer conjecture.
[27]
Section 189(3) is peremptory in its requirement that the applicant
consults with and discloses to the
third respondent all relevant
information including “the alternatives that the employer
considered before proposing the dismissals,
and the reasons for
rejecting each of those alternatives”. The purpose for
embarking on a section 189 process is to
engage in a meaningful joint
consensus-seeking process with a view to reaching agreement on
appropriate measures aimed at, among
other things, avoiding
dismissals (
section 189(2)(a)(i)
of
the LRA). Discussion of possible alternative positions is one
such appropriate measure and failure to do so is not conducive
to a
“meaningful joint consensus-seeking process”.
[28]
The applicant says the third respondent waived her right to an
alternative position. But one
cannot waive a right the
existence of which one is not aware.
[29]
In my view, the first respondent was quite reasonable in finding that
the third respondent might well
have accepted the alternative
position had it been presented to her, thus avoiding retrenchment.
That is after all what the
section 189 process is intended to
achieve. The first respondent said the following in this regard
(at paragraph 26 of the
award)
“
The
retrenchment of the [third respondent] was thus at least procedurally
unfair. As the [third respondent] may have accepted
an
alternative job with the [applicant] after considering all the
options it is impossible to say that there was a good reason
for her
retrenchment.”
[30]
This approach is not dissimilar to that adopted by the Labour Appeal
Court in
Kotze v Rebel Discount Liquor
Group (Pty) Ltd
(2000) 21 ILJ 129 (LAC)
at paragraph [37] where the court said:
“
The
failure to consult the appellant on known alternatives does not
affect or detract from the existence of a valid or genuine commercial
rationale for retrenchment. It only affects his selection.
The selection of an employee for retrenchment does not only
impact on
the procedural purpose of consultation but also on its substantive
purpose. This is so because failure to consult
on known
alternatives leaves open a possibility that the affected employee
might, contrary to the employer’s belief, have
accepted the
undisclosed alternative to his or her retrenchment. If he or
she would have, then it follows that he or she
would not have been
retrenched and the decision to retrench him or her would therefore be
both procedurally and substantively unfair
notwithstanding the
existence of a genuine business rationale therefor.”
[31]
On the facts, the third respondent was not even invited to discuss
alternatives to retrenchment.
That is fatal to the applicant’s
case.
Finding
[32]
In the result, I can find no just cause for upsetting the first
respondent’s award on the review
grounds advanced by the
applicant as “suffused by” the reasonableness standard.
[33]
The application is thus dismissed with costs.
____________________
Ngalwana AJ
Appearances
For the
applicants:
Mr Snyman
Instructed
by:
Snyman Attorneys
For the
respondents:
Mr AJ Nel
Instructed
by:
Dean Caro and Associates
Date of
hearing:
03
December 2008
Date of
judgment:
10 December 2008