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[2011] ZALCJHB 14
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Taylor v ILC Independent Loss Consultants CC (J151/2010) [2011] ZALCJHB 14; (2011) 32 ILJ 2006 (LC) (4 March 2011)
Reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case no.: J151/2010
In
the matter between:
SUZANNE
CAROL TAYLOR
….................................................................
First
Applicant
LISA
MCLAUGHLIN
….........................................................................
Second
Applicant
and
I.L.C
INDEPENDENT LOSS CONSULTANTS CC
…....................................
Respondent
JUDGMENT
BHOOLA J:
Introduction
[1] The applicants sought
relief arising from their alleged unfair dismissal for operational
requirements in terms of section 189
of the Labour Relations Act 66
of 1998 (“the Act”). At the commencement of the trial the
claim in relation to the second
applicant was settled, and the
settlement agreement made an order of this court in terms of section
158(1)(c) of the Act. The first
applicant will accordingly be
referred to herein as the applicant.
Common
cause facts
[2] The applicant was
employed on 1 May 2009 at a monthly salary of R21 500.00 and
dismissed with effect from 30 November 2009
purportedly due to
economic circumstances of the respondent. She applicant was
responsible for claims, office management and human
resources and was
one of eight staff employed by the respondent. She disputes that her
dismissal was due to operational requirements
and alleges that it was
due to family relationships.
[3] Mrs Debbie Gilau
(“Gilau”) is the sole member of the respondent, a close
corporation which commenced operating in
May 2001 and which conducts
independent insurance assessments and settlements of insurance claims
on behalf of clients. Prior to
the incidents that led to the
retrenchment, Gilau and the applicant had been close family friends
for many years.
[4] From about May 2009
onwards the number of claims referred to the respondent declined and
did not pick up as anticipated in September
that year. At a meeting
of 12 October 2009 the respondent’s employees were informed for
the first time of the possibility
of retrenchments due to the
financial circumstances of the respondent. A second staff meeting was
scheduled for 26 October at which
the retrenchments were confirmed.
[5] The respondent
attempted to consult with the applicant in regard to the pending
retrenchment on 14 and 27 October and the applicant
refused to
participate in the process. The applicant received her final
termination notice due to retrenchment on 28 October 2009.
She was
paid severance pay of one week despite having been employed for only
six months.
Evidence led for the
respondent
[6] The respondent
assumed the duty to begin and led Gilau as its only witness. She
testified about the seasonal nature of the respondent’s
business and that its income was dependent on the number of claims
referred to it by clients in insurance for investigation and
settlement. These were usually short term insurance claims arising
from damage or loss to property and declined during the winter
months
annually but increased again from about September when rain damage
and burglaries increased. In 2009 however not only was
there a
drastic decline in claims, but these did not increase as expected.
Instead the decline persisted and by November she was
desperate for a
turnaround. The respondent suffered a total decline in income from
about R2 million to R933 000.00 from 2008
to 2009 and a reduced
number of claims from 1008 to 464. The respondent could not pay
salaries in full in September and was left
with no alternative but to
retrench. Although she was concerned about the decline she held off
on informing her staff as she still
expected an upturn in business.
Staff were aware of the slowdown in business and had in fact raised
their concerns with her but
she had downplayed their concerns. She
honestly believed the pattern would change as it had in the past.
Before making the decision
to retrench she tried to obtain additional
business without success and used her personal funds including credit
cards to pay salaries
at one stage. In September while she was
considering retrenchments Gilau was only able to make part payment of
salaries, and realised
at the end of the month that the situation was
not improving. She still hoped that there would be a turnaround and
discussed the
possibility of obtaining business from Nedbank without
success. She also contacted existing clients to discuss business
volumes,
and investigated alternatives such as reducing overheads by
requesting staff to use internet and phones wisely, although this she
said would not have made much difference. She obtained a reduction in
monthly rental by arranging for Nel to perform typing duties
for the
respondent’s landlord.
[7] She called a staff
meeting for 12 October 2009 to inform staff of the possibility of
retrenchments, and secondly to address
the conduct of employees
following an altercation that had occurred in the office the previous
Friday between the applicant and
Gilau’s daughter in law,
Joanne Gilau (“Joanne”). On the weekend she spent time
going over the financials in
order to decide on the future of the
business and decided to raise this at the meeting. She did not did
not want to pre-empt anything
by informing staff on the Friday that
retrenchments were on the agenda and she went away on the weekend to
decide how best to let
staff know that the business was in trouble.
She decided to inform them of the pending retrenchments and seek
their assistance
with finding alternatives. She castigated staff for
the conflictual and unprofessional conduct in the office, although
this was
not the purpose of the meeting, and asked them to limit
expenses.
[8] At that time Gilau
employed the following staff :
Ms Nel – who
attended to switchboard, dictaphone typing and claims queries and had
been employed since about 2006.
Ms Naicker – an
assessor registered with the Institute of Loss Adjusters who had
commenced employment in 2005.
Ms Selvan –who
handled claims and had been employed since 2007 but worked half days.
Ms Jamie Mclaughlin
(“Jamie”) – employed since 2008 as a claims
handler.
Ms Joanne Gilau
(“Joanne”) – employed since 2009 as a claims
handler and also responsible for IT support.
Ms Sewnarain –
employed since 1 May 2009 as a claims handler.
Mrs Lisa Mclaughlin
(“Lisa”) – formerly the second applicant and
employed on 8 August 2005 and who was undergoing
training as Loss
Adjuster.
[9] At the end of the
meeting Joanne raised an issue concerning an allegation made by Jamie
that her husband (Gilau’s son)
had sexually harassed her in
December 2008. Jamie is the applicant’s grand-daughter and the
daughter of the second applicant.
This was the first time Gilau had
heard of the incident and she sent an email on 19 October 2009 to the
employees concerned suggesting
an off-the-premises meeting to discuss
the issue. She was adamant in her testimony that the allegation did
not influence the decision
to retrench. The meeting was held at a
restaurant the following day but did not resolve the issue and the
applicant threatened
legal action.
[10] Gilau denied that on
12 October she had identified the employees to be retrenched and
confirmed that section 189(3) notices
were issued to all staff
(except Jamie and Lisa who were on leave) the following day. The
notice stated that no final decisions
had been taken and that
consultation was pending, and also set out the selection criteria to
be applied as length of service, work
experience and business
continuity. It was important to Gilau that all staff should
participate in the process and that they understood
that this was the
first notice following which she expected them to propose
alternatives, for instance in regard to minimising
operational costs.
The notice made it clear that claims had declined and that staff
could peruse the claims statistics available
in order to verify this.
In regard to alternatives she had indicated at the meeting that there
was very little she could do in
the interests of business
continuation and the only possibilities were reduced working hours or
days, and that the categories of
employees affected included loss
adjusters, claims handlers and administrative staff.
[11] Gilau thereafter
consulted with staff and an individual consultation meeting was
scheduled with the applicant for 14 October
2009. This however did
not take place because the latter refused to participate and informed
Gilau that she should make any decision
she pleased.
[12] On 23 October 2009
Gilau sent a further email to all employees confirming the staff
meeting scheduled for 26 October. By then
she had consulted with all
staff with the exception of the applicant. At the meeting on 26
October Gilau confirmed that the respondent
would be going ahead with
retrenchments and that all employees had received written notices
advising them of the reasons and that
these were supported by the
statistics available to all employees on the network. The decision to
retrench the applicant was taken
on 26 October and prior thereto
Gilau approached her again but she again refused to discuss the
matter. She said she was not interested
in meeting and asked Gilau to
“
just give me the bottom line”.
By then she had
withdrawn from any communication with Gilau or staff.
[13] On 28 October 2009 a
final notice of termination was issued to the applicant following the
further failed attempt to consult
with her. It is common cause that
she had only been employed for six months and was not entitled to
severance pay, but despite
this the respondent paid her one week’s
severance in order to be as fair as possible. By then the applicant
had obviously
obtained legal advice, and in correspondence dated 26
October 2009 the applicant’s attorneys alleged that the
retrenchment
of the applicants was nothing more than “a
smokescreen for alternative motives” and questioned the motives
for the
decision. The letter alleged that Gilau had misrepresented
the respondent’s financial situation when she appointed the
applicant,
and that she had headhunted the applicant from a stable
job with long term prospects. The applicant’s attorneys further
requested
financial statements for the period February 2007 to 2009.
[14] Gilau denied these
allegations and testified that at the time when the sexual harassment
allegations were brought to her notice
she had not yet made a final
decision to retrench. Had she been informed of the alleged sexual
harassment incident when it occurred
ten months ago she would have
addressed it immediately and it fortuitously only came to the fore
when she informed staff of the
possibility of retrenchments. She
called a meeting immediately and denied that she had attempted to
avoid dealing with the issue.
[15] Gilau further denied
the pleaded allegation that she had headhunted the applicant and
stated that they were good friends and
she knew the applicant was
unhappy at her previous job and had resigned the previous year but
been asked to stay on. She had offered
her employment in order to
support her whilst her husband was hospitalised and to avoid her
having to travel from Pretoria to her
former job in Sandton. This
followed an approach from the applicant who was also prepared to take
a reduction in salary in order
to work for the respondent. Gilau
further denied that she had made any misrepresentations in regard to
the respondent’s financial
situation to the applicant. At the
time she made the offer of employment to the applicant both
affordability and volumes existed,
but unfortunately the situation
changed thereafter.
[16] Gilau testified that
the selection criteria applied, which included a combination of
length of service, business continuity
and work experience, led to
the retention of Naicker (the only staff member other than Gilau who
is registered with the Institute
of Loss Adjusters), Nel and Joanne
(who was responsible for claims and internal IT support and also had
a communications diploma).
When length of service was applied it
became clear that although Joanne had the same length of service as
the applicant, but it
was common cause that Naicker and Nel had
longer service than her. Two employees opted for voluntary
retrenchment (Selvan and Sewnarain)
following this process, resulting
in a salary saving of about R11000.00. Gilau said she followed a fair
procedure in applying the
selection criteria fairly as well as
consultations, meetings and discussions but the applicant refused to
participate in the process.
She had to retain Joanne’s services
even though she was on a temporary employment contract, because she
provided IT support
which her son had previously done on an
after-hours basis and without pay. In any event, she had not
considered Joanne’s
position as a reasonable alternative for
the applicant in that the latter would not have been able to provide
any IT-related services.
It was put to Gilau in cross examination
that the applicant’s version was that Joanne was not competent
in this regard and
simply called her husband whenever there was a
problem. Gilau explained that her son had attended to the hardware
including network
cabling; linking servers and installing new
equipment, and although Joanne could not do all of these tasks she
provided important
networking and software support. She conceded that
the applicant had extensive dictaphone typing skills based on her
expertise
as a conveyancing secretary, but that she had not proposed
this as an alternative and had never indicated that she was prepared
to accept a demotion or reduced salary which this alternative would
have necessitated. Nel also had more work experience in that
she had
more exposure to the industry than the applicant. There were no other
alternative positions to be considered in relation
to the applicant
and Gilau was reluctant to demote any staff member and therefore did
not consider this. The applicant did not
have insurance experience
although she had general work experience, and business continuity
would have been a problem since the
applicant would not have been
able to manage the office in Gilau’s absence.
[17] It was put to Gilau
in cross examination that the salary increase paid to the applicant
in July 2009 contradicted the respondent’s
version on the
operational requirements rationale for the retrenchments. Furthermore
it was incongruous to retain Nel when she
did not receive a salary
increase. Gilau explained that Nel had received a considerable
increase in 2008 to assist with her medical
expenses, and a further
increase in 2009 would have had to be applied across the board to all
staff. Jamie had received an increase
because Gilau had promised to
review and adjust her salary, and Lisa had received an increase
because she had been promoted from
claims handling to assessments.
The applicant’s increase was in fact a salary adjustment of
R1500.00 to accommodate a pension
fund contribution which had been
agreed as a term of her employment but not yet implemented. This was
not performance linked and
although the timing was not ideal she had
given her word to make the adjustments, and in any event did not
anticipate that the
business would continue to remain down.
[18] Gilau denied that
her retrenchment of the applicants was prompted by the sexual
harassment allegation. Her evidence was that
had she known of the
allegation or had a grievance been lodged she would have acted
immediately. She wanted to deal with the problem
and it was the
applicant who became aggressive when the parties met on 20 October
and threatened to resort to litigation. She was
disappointed that
neither of the applicants had said anything to her for ten months
after the alleged incident despite being close
family friends. The
allegations could not have influenced her decision since the
applicants were not the only retrenches. She further
denied the
allegation made by the applicant that the voluntary retrenchments
were simply a scapegoat as the two affected employees
had been
planning to resign in any event. She admitted however that she did
not raise the issue of voluntary retrenchments at the
meeting of 12
October because she was still hoping for business from Nedbank and
had approached a number of contacts about possible
work. She decided
then that if retrenchments were inevitable they would take effect on
30 November but the voluntary retrenchees
chose to leave at the end
of October. The loss of business had by then resulted in a R80 000.00
shortfall in October, the
business was running on overdraft and she
had cut back on basic expenses. She admitted that she did not provide
financial statements
to the applicant’s attorneys because this
would have made no difference in the context of the allegation that
the retrenchments
were a smokescreen. It was clear from the claims
statistics and understood by staff that the decline in claims was
serious and
had significantly affected the respondent’s
business.
Evidence led for the
applicant
[19] The applicant
testified that she and Gilau were close friends and that despite them
going on holiday together at the end of
September the first time
Gilau informed her that the business was in difficulty was at the
meeting of 12 October. She confirmed
that the retrenchment issue was
dealt with as the first item on the agenda and that Gilau had said
“
things were difficult so she could either retrench or
reduce hours or salaries, but could not do the latter”.
Gilau deflected the discussion about the personal issues as that was
not the main purpose of the meeting. Staff were at that time
already
aware of the financial climate. She confirmed that business was slow
but Gilau had assured them that she had been through
this annually
over winter so there was nothing to worry about. Despite this the
staff knew that business did not pick up as Gilau
anticipated.
[20] The applicant
conceded that she had never requested additional information or
financial statements at any stage and the first
occasion on which
this request was made had been by her attorneys on 26 October 2009.
She denied that the claims statistics were
determinative of the
operational need to retrench in that they only indicated claims and
income but not operating expenses or cash
flow. She conceded however
that all staff had access to the statistics on the computer network.
She claimed that Gilau used the
business for her personal expenses,
including grooming for her pets and cell phones for staff not
employed in the office, and that
it was not possible to determine the
impact of this on the respondent’s financial situation without
access to full financial
statements. She conceded in cross
examination however that she had never asked for this for the purpose
of consultation, saying
“
I didn’t ask but there was
nothing available to us – she did everything herself”
.
She however admitted having raised with Gilau her concerns about the
decline in business, but indicated that without the financials
she
was unable to determine the impact of this since Gilau was a “
big
spender”.
[21] The applicant
conceded that the notice of 13 October 2009 was issued to all staff
members and they were all likely to be affected
by retrenchment. She
rejected the invitation to consult with Gilau because she assumed
that a final decision had been taken notwithstanding
the clear import
of the section 189(3) notice. This was based on her understanding
that the notice referred to the alternatives
rejected by Gilau and
she assumed that only the date of termination was subject to
consultation. This explained her response on
14 October when Gilau
approached her and she said “
she has to make the call,
I
am not going to give her a date of retrenchment and she must tell
me”.
Thereafter no further discussions were held in regard
to her retrenchment although she worked with Gilau between 14 and 26
October
on invoicing the large claims. Prior to the 26 October
meeting she knew she was earmarked for retrenchment because Gilau had
moved
into the general office in order to avoid her and had ceased to
communicate with her. She conceded however that this was necessitated
by two break-ins when her computer had been stolen and the move was
necessary to access the spare computer in the general office.
[22] Gilau did not inform
them who would be affected by the decision and the applicant did not
understand the rationale for retaining
the three staff who remained.
She was unable to propose alternatives without being informed who was
being retrenched and why. If
she had been offered Nel’s job the
continuation of business would not have been affected but she
admitted that she did not
propose this because it was not a viable
proposition. She conceded that the sexual harassment issue had
nothing to do with her
and that her only concern was “
how
were people selected
”. However she did not make any counter
proposals in response to the selection criteria. She admitted that
she did not offer
to do Nel’s job or that of the voluntary
retrenches as an alternative, nor was she prepared to take reduction
in salary.
Although she claimed that Joanne was not performing IT
support, she admitted that she could not have done this either.
[23] She admitted that
had the allegation of sexual harassment been serious they would have
acted immediately and that Jamie had
been advised to keep it quiet.
She therefore conceded that “
nobody asked Mrs Gilau to do
anything”.
The averment therefore in her statement of claim
that Gilau “
tried to sweep it under the carpet”
was not correct but it was correct that “
when she did
something about it she got rid of us”.
She attempted to
explain the failure to inform Gilau by the fact that she was not
employed at the time the alleged incident occurred,
and would not
have brought it up if Joanne had not mentioned it in the meeting. If
it had not come up she would still have been
working for the
respondent and it was this report that led to the family being
retrenched.
[24] She confirmed that
at the 26 October meeting, at which the minutes of the previous
meeting were accepted, she did not raise
any issues or even ask for
an opportunity to obtain legal advice. She was not aware of the full
financial situation but did not
ask for this information. She
testified that the meeting lasted only about two minutes and that
everybody kept quiet. She did not
know what information to ask for
and only obtained legal representation after the meeting when a final
decision had already been
taken.
[25] She always received
her salary in full and confirmed that Gilau tried to allay the fears
of the employees. Her evidence that
she was unable to pay salaries in
September and had to rely on her credit card to pay salaries was the
first time she had heard
about this. She conceded that the holiday at
the end of September coincided with a trustees meeting in Margate and
that Gilau used
her timeshare and did not have to pay for
accommodation. She also admitted that during the weekend in Margate
an employee called
to query the non-payment of her salary and Gilau
explained that she had a problem with her credit card.
[26] She had accepted an
offer to work for the respondent during an informal conversation
involving her sister who had just arrived
from New Zealand and had
expressed concerns about her travelling from Pretoria daily to work
in Sandton. She denied that she had
approached the respondent in
March 2009 when her husband was in hospital and it was difficult for
her to travel to work every day,
and denied that Gilau had employed
her in order to support her as a friend. Her evidence was that Gilau
sent her an sms message
asking if she still wanted to work for her
because she needed her and paid her more or less what she had earned
at her previous
job.. She admitted that she had been unhappy at her
previous job but that the respondent had misled her by employing her
in the
circumstances. When she commenced employment with the
respondent she was already past normal retirement age although she
had been
given the impression in her former job that she could
continue working till she was 70. She only accepted the respondent’s
job offer because she would have avoided travelling and could attend
to her sick husband.
[27] The applicant
conceded that her concern was the selection criteria utilised by the
respondent and the sexual harassment allegation
had nothing to do
with her retrenchment. It was put to her that it was contradictory to
request financial statements in the context
of the allegation that
there were no operational requirements for her dismissal and that
this was a smokescreen to avoid the sexual
harassment allegations.
She replied that the financial statements were necessary because “
we
wanted to see if there was a financial problem – where are her
expenses going.”
Evaluation
[28] The applicant
submitted that the respondent’s rationale for the need to
retrench was fatally flawed in the context of
the applicable test as
confirmed by Van Niekerk J in
Van Rooyen & others v Blue
Financial Services (SA) (Pty) Ltd
(2010) 31
ILJ
2735 (at
2740-1). In this regard the court should not defer to the need to
retrench as determined by the employer, but is required
to determine
as an objective enquiry whether the reason advanced is justified. In
fact this court is required to determine not
only whether there is a
commercial rationale for the retrenchment but also whether the
employer’s justification is fair in
relation to the affected
employees. This was the
dictum
of the Labour Appeal Court (per
Davis AJA) in
BMD Knitting Mills (Pty) Ltd v SACTWU
(2001) 22
ILJ
2264 (LAC) relied upon by Van Niekerk. In this regard Mr
Geldenhuys submitted on behalf of the applicant that it is not for
the
court to step into the shoes of the employer to determine the
need to retrench. Therefore the claims statistics relied upon by the
respondent, and in fact any reason short of liquidation, does not
establish a need to retrench. I do not agree with the latter
proposition as it is trite that a distinction can and has been drawn
by none other than Van Niekerk J between the “
corporate
equivalent of excessive bleeding and imminent death”
and
that it is possible to justify dismissal for operational requirements
as a “
life-saving measure
” (
Blue Line
supra
at [20]). The Labour Appeal Court has approved as legitimate a
restructuring strategy that leads to retrenchment in
Vancoillie v
Santam Life Insurance Ltd
(2003) 24 ILJ 1518 (LAC).
[29] In applying this
test
in casu
it is clear that there was sufficient
justification to prevent the further decline of business by the
respondent. Ms Prinsloo,
for the respondent, argued in this regard
that it is common cause that there was a downturn, and the respondent
had proven that
this resulted in significant financial loss and an
inability to sustain the employment of the applicant and others. The
respondent
made genuine efforts to prevent the retrenchments but at
some point the cyclical downturn became systemic and it was forced to
make a drastic decision. In this regard Gilau gave credible testimony
about how she grappled with the decision to retrench, which
was not
an easy one given the intimate relationships that existed given the
size of the business, and that she still expected a
turnaround but at
some point had to make a decision. In fact one needs to go no further
than the common cause fact that claims
were on a steady decline for
2009, and that the respondent’s income was drastically affected
as a result. Although the applicant
denied that the respondent had
difficulty paying salaries, she confirmed that at least one query of
non-payment was made in her
presence and the respondent’s
allegation that she had to rely on her credit card and overdraft
facility, although belatedly
made, was not rebutted. In my view the
respondent has met the onus of proving that there was a substantial
decline in her core
business to justify the need for the
retrenchment.
[30] In addition to the
need to retrench the application of fair and objective selection
criteria is also relevant to substantive
fairness as set out in s 189
(7). In this regard Mr Geldenhuys submitted that the respondent’s
case was again fatally flawed
in that in the absence of agreed
selection criteria, the respondent was required to prove that the
criteria used were fair and
objective. In this regard its reliance on
business continuity cannot be sustained. However, this disregards the
evidence of Gilau
in relation to the three criteria applied, of which
business continuity was but one, and that the applicant had the
shortest service
(except for Joanne, whose IT role was essential to
the business).
[31] The procedural
fairness component encompassed in section 189(2)(b) requires that the
selection criteria be agreed through a
joint consensus-seeking
process. In this regard it is common cause that the applicant refused
to participate in the process. Her
obvious disgruntlement at her
treatment was still present during her evidence, despite reasonable
attempts by Gilau to obtain her
participation. In regard to
procedural fairness Mr Geldenhuys submitted that even in
circumstances where the need to retrench is
not established and no
objective selection criteria are proven the employer is still under a
duty to reach consensus on the factors
listed in s 189(2) and (3).
The final decision to retrench can only be taken once the
consultation process is concluded. The respondent’s
version was
that she took the final decision to retrench on the evening of 26
October, but Mr Geldenhuys submitted that in fact
this decision had
already been made during the meeting that day. This is a fatal flaw
given that during the meeting she knew that
the applicant’s
attorneys had objected to the process and the reason for retrenchment
and had requested financial information.
It is a trite principle, he
submitted, as confirmed in
BMD Knitting Mills
(supra) that the
consultation process cannot be regarded as exhausted whilst employees
are awaiting information. The information
requested represents the
minimum information an employee needs to determine the respondent’s
financial situation. The respondent’s
bald statement to the
effect that there was a shortfall of R80 000.00 per month does
not correlate with loss of business of
R1million and it was therefore
incorrect for the termination notice to state that there were no
outstanding issues after the 27
October attempted consultation with
the applicant. It was submitted that the retrenchment was a
fait
accompli
and the process should be set aside.
[32] Ms Prinsloo
submitted that it was clear from the chronology that the respondent
alerted employees of the possibility of retrenchments
on 12 October,
issued section 189 (3) notices the following day; sought to engage
the applicant in consultation on two occasions
and held a further
staff meeting on 26 October, following which final retrenchment
notices were issued on 28 October. It is common
cause that the
applicant refused to participate in the process nor did she request
further information (including financial statements),
or make
counter-proposals or suggest any alternatives to her retrenchment.
The respondent, a small employer where relationships
were obviously
informal, could not have been expected to do more than it did in the
circumstances to consult with the applicant.
The applicant cannot
belatedly contend that she was unable to consult on account of
insufficient information – her evidence
was that she refused to
consult because she thought the decision had already been made and
her pleaded case (although this was
to some extent abandoned in the
proceedings ) was that there was no other basis for the retrenchment
but to get rid of the family
that made the sexual harassment
allegations against Gilau’s son.
[33] It is trite that
s189 does not impose a duty only on the employer party. Section 189
(2) requires both
parties
to engage in a meaningful joint
consensus-seeking process. This implies a duty on the employer to
follow a fair procedure and on
the employee to participate. An
employee’s blunt refusal to participate does not constitute
joint consensus seeking and the
employer cannot be held liable for
her failure to participate. It is clear from the evidence that the
respondent made all reasonable
attempts to engage the applicant in
consultation. It is common cause that she refused resulting in lack
of consensus. This cannot
render the dismissal procedurally unfair
[34] As Ms Prinsloo
submitted, the chronology of events is key to disposing of the link
between the retrenchment and the sexual
harassment allegations. The
incident was alleged to have occurred in December 2008; the applicant
commenced employment in May 2009
well aware of the allegation ; no
grievance was raised nor was the respondent notified by a friend or
asked to act (ostensibly
on the grounds that she would get upset and
was busy planning her son’s wedding); the incident was only
raised subsequent
to notice of possible retrenchments. It was
moreover common cause that the respondent was not even aware of the
allegation when
she initiated the joint consensus-seeking process. In
the circumstances, the applicant has failed to meet the evidentiary
burden
of proving that her retrenchment was a smokescreen for the
sexual harassment allegations.
[35] There can therefore
be no other conclusion on the probabilities but that the applicant
was dismissed for reasons relating to
legitimate operational
requirements, and by way of a process that was fair. In fact the
respondent went beyond the requirements
of fairness by paying the
applicant both one month’s notice as well as severance pay
despite her six month period of employment.
The evidence established
moreover that the respondent did everything possible to assist the
applicant as a friend, even employing
her to obviate excessive
travel, and that she responded with nothing but bitterness and
acrimony. It is unfortunate that such a
longstanding friendship was
destroyed as a result.
[36] In the premises, I
make the following order:
The first applicant’s
claim is dismissed.
As agreed between the
parties, there is no order as to costs.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Date of hearing : 21 –
22 February 2011
Date of judgment: 4 March
2011
Appearance:
For the First Applicant :
C S Geldenhuys, Geldenhuys @ Law Inc
For the Respondent: Adv C
Prinsloo instructed by Vogel Malan Attorneys
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