National Union of Mineworkers and Others v Revan Civils Engineering Contractors and Others (C964/2008) [2011] ZALCCT 9; (2011) 32 ILJ 2167 (LC) (1 April 2011)

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[2011] ZALCCT 9
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National Union of Mineworkers and Others v Revan Civils Engineering Contractors and Others (C964/2008) [2011] ZALCCT 9; (2011) 32 ILJ 2167 (LC) (1 April 2011)

Reportable
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO.: C964/2008
In the matter between:
NATIONAL UNION OF MINEWORKERS
…..............................................
First
Applicant
McGREGOR NTYINALA & 57 OTHERS
….....................................
.Second
and Further
Applicants
and
REVAN CIVILS ENGINEERING CONTRACTORS
…...........................
First
Respondent
REVAN PLANT HIRE (PTY) LTD
….................................................
Second
Respondent
REQUAD CONSTRUCTION CC
…......................................................
Third
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Rabkin-Naicker A.J.
[1] The second to further applicants were dismissed on the 11
th
July 2008, allegedly on the basis of the operational requirements of
the respondents. The retrenchments were purportedly effected
in terms
of section 189 of the LRA. On the first day of trial, by means of an
unopposed application, applicants’ statement
of claim was
amended. They alleged, as an alternative claim, that their
retrenchments should have been governed by section 189A
of the LRA.
The primary relief they now sought was a declaration that the notices
of termination they received were unlawful and
invalid.
[2] By the stage that legal argument was presented at the trial, the
respondents, on their part, had made a number of significant

concessions, that:
2.1 section 189A of the Labour Relations Act applied to the entire
retrenchment process of the employees of the three companies
and the
individual respondents should have been regarded as divisions of one
entity for the purpose of the retrenchments;
2.2 applicants listed as numbers 28 to 33 and number 45 were not
casual, but permanent workers;
2.3 where LIFO was applied by the respondents as a selection
criterion in respect of first and third respondents, it should have

been applied across the two companies, and all employees who lost
their jobs as a result of such application of LIFO are entitled
to a
finding that their dismissal was substantively unfair; and
2.4 as a result, of 2.3 above, 9 employees of first respondent (the
3
rd
to 12
th
applicants) should not have been
dismissed because they should have been assessed together with their
counterparts employed by
third respondent, for purposes of LIFO.
[3] The concession that section 189A applied, came with a rider: that
as a result this court does not have jurisdiction to consider
the
procedural fairness of the dismissals. We shall return to this
proposition.
Background
[4] On 30 April 2008, the first applicant (the union) received three
invitations to consult in terms of section 189 of the LRA.
These were
dispatched by the South African United Commercial and Allied
Employers Organisation (the employers’ organisation)
on behalf
of the respondents.
[5] At the core of the explanation for contemplated retrenchments was
the situation of third respondent (Requad). According to
the 189
notice, the civil engineering industry in Cape Town had over the past
12 months experienced a ‘drastic reduction’
in the amount
of tenders available from government and the private sector. The
company was no longer strategically positioned to
compete for and
take on tenders with an average turnover of R6 million per month, and
it would be better to scale down its activities.
[6] The notice anticipated that approximately 15 positions would be
affected including 4 pipe layers, 9 general workers and 2 survey

assistants and stated that: ‘The selection was made due to
certain activities being reduced and to keep certain skills and

experience.’
[7] In clear reference to section 189A, each notice contained a
clause headed “Statistics”. In respect of Requad, this

read: ‘In terms of law we are also required to advise you that
our member currently employs 47 employees and that no other

employee’s services have terminated due to operational
requirements in the preceding 12 months.’
[8] In as far as second respondent (Revan Plant) was concerned; the
union was told that due to the fact that it hires plant to
Requad on
a monthly basis and due to the operational requirements of Requad, it
would be necessary to reduce the current staffing
structure
accordingly. The notice anticipated that ‘approximately 9
positions’ would be affected. These included 2
dumper
operators, 1 flatbed operator, 1 water truck driver, 2 excavator
operators and 3 digger loader operators. The decision was
made,
according to the notice, ‘on the basis of plant which will be
standing shortly with no work and no work foreseen in
the immediate
future’.
[9] The ‘Statistics’ clause read: ‘In terms of law
we are also required to advise you that our member currently
employs
71 employees and that no other employee’s services have been
terminated due to operational requirements in the preceding
12
months. The number of 9 contemplated retrenchments was fortuitous, in
that it was 1 less than the number required to trigger
the provisions
of section 189A.
[10] In respect of the invitation to consult with the first
respondent (Revan Civils), the notice referred to the fact that its

activities were closely related to that of Requad, in that the Revan
Civils provides labour and administrative services to Requad.
It
anticipated that approximately 7 positions would be affected
including 3 pipe layers, 3 general workers and 1tacky-siter.
[11] The notice proposed that the selection criteria ‘primarily
be based on the principle of last in first out, but that
certain
exceptions may need to be made in order to ensure retention of
certain skills and experience.’ The ‘statistics’

provided in this notice were that the company employs 18 employees,
and that no other employee’s services have been terminated
due
to operational requirements in the preceding 12 months.
[12] The history of the three companies was gleaned from respondents’
witnesses (the applicants did not give evidence at
trial). Revan
Civils was described as a ‘historical relic’, although
its fortnightly paid employees were among the
longest serving across
the three companies. Requad had been established in 1991, and became
active in 1997 with BEE credentials,
thus able to tender for
government construction contracts. Plant Hire and Revan Civils were
entirely ‘white owned’.
The court was told that no BEE
stakeholder was involved in the retrenchment process.
[13] The notices referred to possible finalisation of the section 189
process as of the end of May 2008.The Respondents offered
a severance
package at the statutory rate of one week paid for every completed
year of service, and undertook to re-employ retrenchees,
should
suitable vacancies arise within three months of the retrenchment.
The consultation process
[14] The first consultation meeting took place on the 14 May 2008.
The parties discussed amongst other things, the issue of potential

voluntary retrenchments and short time. Two days later the union
faxed a counter proposal on 17 positions occupied by employees
who
were prepared to accept voluntary retrenchments. Of the 17, 7 were at
Revan Civils, 7 at Plant Hire and 3 at Requad. The union
was not
prepared to disclose the names of the individuals to the respondents.
[15] At a meeting on 20 May 2008, the second consultation meeting,
respondents gave the union a list of names of the employees
who had
been identified for retrenchment. According to the evidence of Mr De
Klerk (De Klerk), representative of the employer’s

organisation, and long-time consultant to Revan Civils, his mandate
was to the effect that the companies needed a small component
of
employees which would have the right blend of skills and experience.
Service came into question, primarily LIFO, but there was
also an
emphasis on retaining skills and experience- the right people were
needed for the job. He made this clear to the union
at the first
meeting.
[16] De Klerk stated that the union had not had an issue with the
substantive reasoning of the retrenchments at the outset. In
regard
to the measuring of the skills of employees, he stated that he felt
comfortable in relying on management and the shop-steward’s

knowledge of the employees. The company had become knowledgeable
about those employees performing very well in their jobs, and
those
able to perform other duties.
[17] Before the second consultation meeting on 26 May 2008, he had
sent a list of names of contemplated retrenchees to the union.
De
Klerk said the union identified the list as an aggressive move by the
employers. Despite this, there was engagement on names
on the list
and debate about swopping certain individuals with others at the 26
May meeting.
[18] On 4 June 2008, he was notified by the respondents that if the
retrenchments were not urgently dealt with, there was a chance
that
remaining jobs in the companies could be severely jeopardized.
Accordingly, De Klerk drafted and sent a letter to the union
dated 4
June 2008 stating that:
“
As indicated in our initial
correspondence of 30 April 2008 as well as in the consultation
meetings, our member has now exceeded
the time frame for
implementation of the retrenchment which results in additional
financial prejudice being incurred on a daily
basis. Our member has
agreed to the above meeting (i.e. on 6 June 2008) on the basis that
it reserves its rights to regard the
said meeting as a final attempt
to reach consensus regarding the consultation process. Should no such
consensus be reached our
member may have no alternative but to
declare the consultation process exhausted.
We have also been instructed to notify you that regardless of the
current number of employees affected by the retrenchment exercise
it
has now been confirmed that our member has been unable to secure any
additional work to the production schedules provide (sic)
to
yourselves and that it would thus, as a second phase of the
retrenchment exercise be necessary to consider a further list of

names for retrenchment, details of which will be provided to you in
due course.”
[19] According to De Klerk, following the letter, at the meeting of 6
June 2008 with the union, the company took ‘
a bit of a
beating’
. A further 39 names had been added to the list of
potential retrenchees, meaning that the original number had now more
than doubled.
The chairman of the union, in addition to a union
official, attended on 6
th
June 2010. De Klerk stated in
chief that the air was cleared at the meeting and the discussion
continued regarding the selection
of the additional 39 names.
[20] Under cross-examination, he conceded that the employer and the
union were ‘not quite’ in agreement regarding the

selection criteria proposed by the respondents. This had been
expressed by the union in the meeting of the 6 June 2008. He agreed

that his testimony to this effect was not in line with the statement
of defence of respondents, nor with his witness statement
prepared
for trial. It had been asserted in these pleadings that a binding
agreement had been concluded at the meeting of June
6
th
which the union proceeded to renege on.
[21] In answer to the question as to whether the 39 new retrenchees
had been subject to a consultation process at all, De Klerk
testified
that all the issues regarding the retrenchment i.e. a recall clause,
severance and assistance measures had been dealt
with at the previous
consultations with the union and these issues must have been already
debated in a general meeting of the union
members.
[22] After the June 6 meeting, in a letter dated 9 June 2008, De
Klerk stated that: “
we refer to the agreement reached in the
above regard”,
and enclosed a draft retrenchment agreement
for the union. A list of those to be retrenched was annexed to the
draft. De Klerk
conceded that when a union receives a draft
retrenchment agreement it needs to get a mandate before agreeing to
it and in fact
a ‘draft agreement’ was one for
consideration.
[23] Mr Visser (Visser), a contract manager employed by Revan Civils,
and deployed to manage contracts won by Requad, gave evidence
on the
nature of the skill/ experience selection criteria favoured by the
respondents. For example, he testified that where an
employee, had
had longer years of experience on a particular piece of plant, even
if such experience had been with a previous employer,
that person was
retained in place of another employee with shorter experience on the
particular piece of plant, but who had longer
service with the
respondent companies.
[24] In the pipelayers category, years of experience was not used as
a criteria, but rather the range of pipelaying skills of an

individual was used to select those employees being retained. Much of
Visser’s evidence aimed to establish, by means of models
of the
various plant machinery, that the specific machines used by Plant
Hire required particular and different skills. As a result,
it was
claimed that it was not possible to train an employee on a different
machine.
[25] A number of examples of individuals were shown to him for
comment during his evidence in chief. These he dealt with by means
of
reference to a schedule which had been prepared for purposes of
consultation with his counsel, to refresh his memory. He explained

that the union had been asked to give information on skills but had
not been forthcoming. His knowledge of the skills people had,
‘he
had in him’. Visser conceded that the issue of breadth of
skills in pipelaying as a criterion was never put on
the table and
discussed with the union and members involved. He agreed that from
his perspective the process was to end up with
the best staff.
[26] In relation to dumper truck drivers who had been retrenched,
Visser explained that the reason for the retrenchment was that
there
was no work for the dumper truck machines anymore. He stated that
since 2008 dumper trucks were ‘
seconded’
to Revan
Civils and did not work for Requad anymore.
[27] He testified that the issue of ‘skill years’, as a
selection criterion, was discussed on the basis of the knowledge
‘
we
have as management’
and he had from the site. Although the
union had been asked to provide a list of skills of its members, no
input was received from
them.
[28] It was evident from Visser’s evidence and the schedule
referred to by him that skills/experience criteria applied by
the
respondents was not applied across the three companies. The employees
in each company were considered separately in respect
of the
selection criteria even though certain job categories ran across the
companies.
The ‘invalidity’ remedy
[29] Mr Kahanovitz for the applicants, submitted that given the
retrenchment process should have taken place in terms of section

189A, and that respondents did not comply with the provisions of that
section, the appropriate remedy for this court would be to
declare
the retrenchment notices that were given to the individual applicants
as unlawful and invalid. Section 189A(2)(a) provides
that: “
an
employer must give notice of termination in accordance with the
provisions of this section”
. He argued that should the
court issue such a declarator, the respondents would be obliged to
pay the individual applicants all
of their wages from the date of
their terminations until the date of the court order. The authority
for such an approach, he submitted,
was to be found in the as yet
unreported judgment
(JA 65/2009)
[2010] ZALAC 26
(20 December
2010)
in the matter between
De Beers Group Services (Pty) Ltd
and National Union of Mineworkers (the LAC De Beers case)
.
[30] I turn to consider if such a remedy is apposite.
[31] The provisions of section 189A as a whole were considered in the
matter of
National Union of Metal Workers of South Africa &
Others v SA Five Engineering & Others (2004) 25 ILJ 2358 (LC)
,
Murphy AJ (as he then was) stated in paragraph 7:
“
Section
189A sets out to accomplish several objectives. First and foremost it
bestows on employees in significant operational requirement

dismissals a choice between industrial action and adjudication as the
means of attempting to resolve the dispute. To minimize avoidable

strikes and litigation, the section allows for the possibility of
compulsory facilitation by the CCMA, if either the employer or
a
consulting party representing the majority of employees targeted for
dismissal requests it. Otherwise the parties are free to
agree to
voluntary facilitation (s 189A(3) and (4)). The appointment of a
facilitator suspends the employer's right to dismiss
for 60 days.
After the period has expired the employer may give notice of
termination of employment. Once the notice of termination
is given,
the employees have the choice of either embarking on lawful
industrial action or referring a dispute regarding substantive

fairness to the Labour Court - s 189A(7). Once there is a referral to
the Labour Court the right to strike is no longer available.
Equally,
if no facilitator is appointed, neither party may refer a dispute to
the relevant bargaining council or the CCMA for 30
days from the date
of a s 189A(3) notice. Thereafter the employer is free to give notice
of termination and the employees are compelled
to opt for industrial
action or a referral of the dispute about substantive fairness to the
Labour Court.
What is most notable about
this scheme for present purposes, is that referrals to the Labour
Court are overtly restricted by ss
189A(7)(b) (ii) and 189A(8)(b)
(ii)(b) to disputes 'concerning whether there is a fair reason for
the dismissal', in other words
disputes about substantive fairness.
Moreover, both provisions state expressly that the referral is to be
made in terms of s 191(11),
the provisions of which appear below.
Disputes about procedure in cases falling within the ambit of s 189A
cannot be referred to
the Labour Court by statement of claim, but
must be dealt with by means of motion proceedings as contemplated in
s 189A(13), the
exact scope of which I will return to presently.
Suffice it now to say that the intention of s 189A(13), read with s
189A(18),
is to exclude procedural issues from the determination of
fairness where the employees have opted for adjudication rather than
industrial action, providing instead for a mechanism to pre-empt
procedural problems before the substantive issues become ripe for

adjudication or industrial action.”
[32] The
LAC De Beers
case was concerned with an appeal
against a judgement by Bhoola AJ (as she then was), in which the
court
a quo
declared that the termination notices of certain
employees were tainted by prematurity and were as a result, invalid
and of no
force and effect. Certain employees were ordered to be
reinstated until ‘such time as valid termination notices may be
issued’
and others ‘until Respondent has complied with a
fair procedure’. As Davis JA put it at paragraph 7 of the
LAC
De Beers
case:
“
In the view of the learned judge in the
court a quo, section 189A (2) (a) had to be interpreted to the effect
that compliance with
the provisions of section 189A were peremptory,
as a result of which a premature issue of a termination notice,
without compliance
in terms of section 189A (8), rendered the notices
void ab initio.”
[33] The court a quo was seized with an application brought in terms
of section 189A(13) in which the applicants sought, amongst
other
relief, that the notices of termination in terms of section 189A be
declared invalid. The LAC found that the declaratory
order was
justified in law, and dismissed the appeal.
[34] It is necessary on the facts of this case to consider two
pertinent questions. First, what is the effect of an employer’s

failure to conduct a retrenchment process in terms of section 189A
and instead conduct it as though section 189 applied; and secondly,

where, as in this case, on respondents’ own version it
acknowledges that section 189A was applicable, can this court
nevertheless
make an order in respect of the procedural fairness of
the dismissals.
[35] In
National Union of Metal Workers of South Africa &
Others v Shakespear Shopfitters (Pty) Ltd (2008) 29 ILJ 1960 (LC)
Basson, J surveyed a number of decisions that have dealt with section
189A(13) of the LRA and had this to say in paragraph 9 :
“
The remedy that the court may grant
under s 189A(13) for non-compliance with a fair procedure includes an
order compelling the employer
to comply with a fair procedure,
interdicting or restraining the employer from dismissing an employee
prior to complying with a
fair procedure and directing the employer
to reinstate an employee until it has complied with a fair procedure.
In order to give
effect to the purpose of this section, particularly
in respect of the order sought in terms of s 189A(13)(a) -(c), it is
necessary
that employees who seek to rely upon it, act with
expedition and some measure of urgency. An unreasonable delay in
bringing an
application to compel an employer to adhere to a fair
retrenchment procedure may render the order academic once the horse
has bolted.”
[36] I am of the view that on a proper reading of section 189A as a
whole, the remedy of a declaration of invalidity of notices
of
termination, may only be granted on an interim basis, pending
compliance with its provisions. In my view the
LAC De Beers
case is not authority for such remedy to be afforded in a case such
as this, where applicants seek it at the stage of trial proceedings,

and which order would be final in effect. I note that Mr Kahanovitz
did not seek reinstatement in reliance on the
LAC De Beers
case, but rather payment of remuneration from date of dismissal to
date of this judgment – in effect a
solatium
greater
than the compensation afforded by the LRA.
[37] This brings me to consider the alternative relief sought by the
applicants and whether in light of the evidence presented
at trial
and the concessions made by the respondents, the respondents have
proved that the retrenchments were for a fair reason
and conducted
according to a fair procedure.
Procedural fairness
[38] Mr Rautenbach for the respondents submitted that the ‘portal’
to the granting of compensation for unfair procedure
in a section
189A retrenchment process was only by way of section 189(A) (13) of
the LRA. In the result the court did not have
jurisdiction to make
such an order.
[39] His submission, if correct, would be the prize for the
concession made that section 189A indeed applied to the retrenchment

process. On this basis compensation for procedural unfairness could
not be entertained.
[40] Followed to its logical conclusion, the argument would mean that
an employer could avoid its obligation to follow the section
189A
procedure, concede that such was applicable at the stage of trial,
and then claim that this court has no jurisdiction to hear
a claim
for procedural unfairness.
[41] In my view the proposition is at odds with the objectives of the
LRA as a whole, and the provisions of s189A read with s189
in
particular. Section 189A is a finely balanced provision which affords
the parties opportunities to exercise their rights to
strike and
lock-out. It also seeks to encourage an ordered and exhaustive
consultation process.
[42] Section 189A(3) offers parties in large scale retrenchments an
important election, ie that a facilitator be appointed to assist
the
consultation process. Although this is an election and not a
requirement, failure to go this route closes the door to claiming

unfair procedure at a later stage. Section 189A(18) provides that:
“
The Labour Court may not adjudicate a dispute about the
procedural fairness of a dismissal based on the employer’s
operational
requirements in any dispute referred to it in terms of
section 191(5)(b)(ii).”
[43] In this case, the applicants were not afforded the election
contained in s189A(3), precisely because the respondents chose
to
conduct the retrenchments as though section 189A did not apply. The
applicants cannot then be subject to the provision contained
in
section 189A(18), and lose their right to claim procedural unfairness
of their dismissal. A loss of this sort would offend the
aims and
objectives of the LRA.
[44] Given the concession made at trial that section 189A did in fact
apply, the obiter dictum in
Continental Tyre SA (Pty) Ltd v
National Union of Metalworkers of SA(2008) 29 ILJ 2561 (LAC)
is
particularly apposite
.
In that case the LAC stated that if an
employer acted in a manner to avoid the scope of s189A, it can be
held to be subverting
hard-earned rights won by employees.
[45] The concession made by the respondents in this matter, that
section 189A did in fact apply, taken together with the evidence

given by De Klerk and the content of the notices drawn by him (I
refer particularly to the ‘statistics’ section of
the
notices), leads to the conclusion that the respondents were indeed
attempting to avoid the scope of section 189A at the time
of the
retrenchment process.
[46] As stated above, an important part of the rights afforded by
section 189A are procedural safeguards. In my view the avoidance
of
the section by the respondents must render the retrenchment process
of the applicants procedurally unfair. Even if I am wrong
in this
view, then on respondents’ own evidence, the 11
th
hour addition of 39 more retrenches on behalf of whom no consultation
took place; the claim in pleadings before this court that
there was a
final agreement by the 6 June 2008 which the union reneged on, when
in fact it was conceded there was not; and a consultation
process
that was clearly not exhausted, would satisfy the court that the
respondents have not met the onus of proving the procedural
fairness
of the dismissals.
Substantive fairness
[47] In so far as the substantive fairness of the dismissals are
concerned, Mr Kahanovitz submitted that all the employees who
would
not have lost their jobs if fair selection criteria had been applied,
should be reinstated on the same terms and conditions
as applied at
the date of their dismissals. They should also be entitled to full
back-pay less such amounts, as those employees
who were re-employed
by the respondents since their dismissal, may have earned.
[48] Mr Rautenbach, for the respondents, referred the court to
section 189A(19) of the LRA which provides as follows:
“
In
any dispute referred to the Labour Court in terms of section 195
(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-
the dismissal was to give
effect to a requirement based on the employer’s economic,
technological, structural or similar
needs;
the dismissal was
objectively justifiable on rationale grounds;
there was a proper
consideration of alternatives; and
selection criteria were fair
and objective.”
[49] The distinction between this provision and that contained in
section 189(7) bears mention. Section 189(7) obliges an employer
to
select the employees to be dismissed according to selection criteria
that have been agreed to by the parties, or if no criteria
have been
agreed, criteria that are fair and objective
. Screenex Wire
Weaving Manufacturaing (Pty) Ltd v Ngema and Others (2010) 31 ILJ 361
(LAC) at paragraph 23.
The cumulative requirements of section
189A(19) appear crafted to heighten the hurdle for employers when
proving the substantive
fairness of large scale retrenchments.
[50] In this matter, given the concession that no agreement was reach
on selection criteria by Visser, it is clear that whether
in terms of
section 189 or section 189A the applicable test is whether the
selection criteria were fair and objective. Mr Rautenbach
submitted
that it is permissible and fair for an employer to select employees
based on their skills as observed by management.
He further submitted
that such observations or knowledge may include knowledge of previous
skills which employees possess. For
these propositions he relied on
the case of
National Union of Metalworkers of SA and Others v John
Thompson Africa (2002) 23 ILJ 1839 (LC) at par 264.
[51] In the
John Thompson Africa matter
, Pillay J found that
“
the retention of skills is a valid selection
criteria….However, the method of assessing the skills must be
objective, fair
and consistently applied”.
The method used
in that case was an assessment of skills by the production manager,
in conjunction with the supervisors. He undertook
an exercise of
grading workers according to their skills. Realising, however, it was
unfair because it was based on the opinion
of the supervisors, he
abandoned the grading. He continued the process of selection by
examining the content of the jobs to determine
whether a particular
individual would be able to do the job. His opinion of their skills
was based on his observations of their
actual performance or through
discussions with the foremen.
[52] Visser’s evidence did not reflect an objective process.
The selection he made was based, according to his evidence,
on the
knowledge ‘
I had in me’
and on his knowledge of
the CVs of employees which he said they had provided when recruited
to the companies. He was questioned
in some detail under cross
examination on the decision to retrench the first applicant, who had
17 years of service with the company.
He testified that because
dumper truck drivers were no longer needed, first applicant had been
offered the lower paid job of a
water truck driver, which he had
refused. It was put to him that first applicant had been a truck
driver in the past and that the
union had suggested he be placed as a
truck driver which was higher paid. Visser’s explanation was
that there were truck
drivers in the position ‘and we didn’t
want to replace them’. This was even though some of the drivers
had only
5 years of service.
[53] In my view, on respondents’ own evidence, the selection
criteria cannot be characterised as fair and objective. Over
and
above the fact that the process was dealt with in a manner that kept
up the façade of three different companies, even
where some
job categories were shared across the companies, the selection
criteria fell far short of the objective and fair test
required. The
overall impression created by Visser and De Klerk was that the
retrenchment process was being utilised to alter the
nature of
employment in the companies.
[54] De Klerk confirmed under cross examination that new contracts of
employment were drawn up by him to be used for employees
who were
re-employed or to be employed in the future. These contracts signed
by certain of the applicants are for the post of ‘general

worker’ and purport to be only for the duration of a specific
project and for a fixed term. The contracts are contained in
the
documents before court and are entitled ‘
Limited duration
contract’
and ‘
Agreement to terminate employment
by mutual consent’.
[55] Given the admissions made by the respondents referred to in
paragraph [2] of this judgment; the severing of the application
of
selection criteria between each of the companies; and respondents’
own evidence regarding the method of selection, I cannot
find that
they have met the onus of proving that the selection criteria were
objective and fair. In making my order, I also take
into account
evidence given by the founding member of the companies, Mr Pierre de
Preez, who confirmed under cross examination
that the companies have
successfully tendered for a number of big projects since 2008, and
that the order book for tenders was
healthy with a six month planning
period.
Relief
[56] The parties have provided me with four tables (annexed to this
Judgment) containing the names of certain of the applicants
in order
to assist the court. I deal first with the relief I intend to grant
to those applicants whose dismissals I find to have
been procedurally
and substantively unfair. The 28 applicants whose names appear on
Table One are to be reinstated into the positions
they held at the
time of their dismissals. For purposes of clarity, I emphasise that
they are entitled to their remuneration from
date of dismissal, less
any earnings arising from re-employment with the respondents. Table
Four lists the names and remuneration
of those applicants who have
been re-employed by respondents subsequent to their dismissals.
[57] The 29 applicants whose names appear on Table Two constitute
those of the applicants added to the retrenchment process at
the
eleventh hour, and in respect of whom no consultation process took
place at all, are also reinstated on the same terms as those

applicants listed in Table One, due to my finding that their
dismissals were substantively and procedurally unfair. I am unable
to
accept that the only adverse finding I can make in regard to these
dismissals is that they were procedurally unfair, as submitted
on
behalf of the respondents. The oft quoted principle enunciated by the
LAC in
National Union of Metalworkers of SA v Atlantis Diesel
Engines (Pty) Ltd (1993) 14 ILJ 642 (LAC)
of the porous divide
between substantive and procedural fairness is apposite. As the court
in
Keil v Foodgro (A Division of Leisurenet Ltd )
[1999] 4 BLLR
345
(LC) at para 10
held:
''It is through the constructive engagement implicit in this
process that the need to retrench is confirmed as well as the
selection
of those employees who are to be retrenched.”
[58] The applicants listed in Table Three seek compensation for
unfair procedure only. They do so on the basis that had the selection

criteria been fair and objective, they would have been retrenched.
Taking into account the concession made by the respondents that

section 189A should have applied to the process and the degree of
departure from a fair procedure which ensued in respect of these

applicants, I find that they are entitled to receive an amount of six
months compensation, less where applicable, any earnings
since their
dismissal as a result of re-employment by the respondents.
[59] In as far as costs are concerned, I see no reason why costs
should not follow the result. I therefore make the following order:
(a) The dismissals of the applicants whose names are listed in Tables
One and Two were procedurally and substantively unfair and
these
applicants are hereby reinstated into their positions as of date of
dismissal;
(b) The dismissals of the applicants whose names are listed in Table
Three were procedurally unfair and these applicants are hereby

awarded compensation equivalent to six months remuneration;
(c) Any remuneration earned by the applicants referred to in
paragraphs (a) and (b) of this order, due to their re-employment by

respondents is to be deducted from their back pay or compensation, as
the case may be, in accordance with Table Four;
(d) Costs are to be paid by the respondents jointly and severally.
_________________________
Rabkin-Naicker AJ.
Date of Hearing: 7-11 February 2011
Date of Judgment: 1April 2011
Appearances:
For the Applicant: Adv C Kahanovitz SC
Instructed by: Cheadle Thompson and Haysom INC
For the Respondent: Adv F Rautenbach
Instructed by: Justine Del Monte and Associates