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[2011] ZALCCT 8
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Adams v DCD-Dorbyl Marine (Pty) Ltd (C928/2009) [2011] ZALCCT 8; (2011) 32 ILJ 2472 (LC) (17 May 2011)
Reportable
Of interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
Held
at Cape Town
Case
No: C928/2009
In the matter between:
JOHN
HENRY ADAMS
…..............................................................
APPLICANT
AND
DCD-DORBYL
MARINE (PTY) LTD
…......................................
RESPONDENT
judgment
STEENKAMP J:
Introduction
The applicant, Mr John Adams, was dismissed for operational
requirements. He claims that the dismissal was automatically unfair
in terms of s 187(1)(g) of the Labour Relations Act
1
;
alternatively, that it was procedurally unfair.
Background facts
Adams was initially employed by an entity called Globe Engineering
Works (Pty) Ltd (“Globe”) from 1 February 2007.
In March
2009, the Competition Tribunal approved a merger of Globe, Nautilus
Marine (Pty) Ltd (“Nautilus”) and the
Cape Town
operations of DCD Dorbyl (Pty) Ltd. The merged entity became the
respondent, DCD-Dorbyl Marine (Pty) Ltd (“DCD”)
with
effect from 1 April 2009.
Before the merger, on 28 February 2009, Globe had issued a notice of
possible dismissals for operational requirements in terms
of s 189A
of the LRA. On 1 April 2009, commensurate with the merger, DCD
withdrew that notice.
As a result of the merger, Adams’s contract of employment was
transferred to DCD in terms of s 197 of the LRA. In terms
of the
order of the Competition Tribunal and the conditions attached to the
approval of the merger, 28 “white collar”
employees
could be retrenched in the 12 months following the merger, viz:
24 support staff from administration and finance, human resources,
stores and security; and
four executive managers.
Adams was employed as a buyer. He fell within the service
departments (administration and finance) described as “white
collar” employees.
On 28 April 2009 DCD issued a notice to all employees confirming
that, in terms of the Competition Commission ruling, “blue
collar” workers would not face retrenchment, but that 28
employees from the service departments “could be”
retrenched. DCD also brought a reduction in workload to its
employees’ attention. Some employees – not including
Adams – were put on short time. The notice also recorded that
“several employees” had enquired about the possibility
of voluntary severance packages. Adams was not one of them.
On 11 May 2009, DCD issued a notice to affected employees –
including Adams – in terms of s 189(3) of the LRA. The
notice
refers to the ruling of the Competition Commission and states that
it wishes to consult on the possible dismissal for
operational
requirements of 28 employees in the “support functions”,
including administration and finance. It stated
that, in the
original submissions to the Competition Commission, the employer had
stipulated that “rationalization of the
support functions
(administration, finance, HR, security etc) of the three businesses
may result in the reduction of 28 positions”.
It continued:
“
Consequently
the employer proposes that the positions listed above are redundant
and that selected incumbents should be operationally
dismissed. The
employer proposes commencing consultations on these matters on 13 May
2009.
Regarding the alternatives to
operational dismissals which the employer has considered, the
employer regrets that there are no alternatives
consequent to the
proposed merged support structure, requiring lower staffing levels.
Furthermore the dramatically lower levels
of business activity mean
that there are no alternative positions available.”
The proposed selection criteria for dismissals were stipulated as
“position and skill”. Adams was informed that:
“
You
currently hold the position of Buyer. The employer views this
position as redundant, due to the restructuring of the Buying
Departments, consequent to the merging of the Departments of
DCD-Dorbyl Marine, Globe Engineering Works and Nautilus Marine. The
company has taken into consideration factors such as skills and
experience.”
The letter went on to set out the terms of a voluntary retrenchment
package, that would be more beneficial than the statutory
severance
pay of one week’s remuneration per completed year of service
that would be paid to employees who would be dismissed
for
operational requirements and had elected not to accept voluntary
retrenchment.
On 13 May 2009 at 07:18 Adams received an email message from Pamela
de Swardt, the financial manager, who was his immediate supervisor.
The email was addressed to him and seven other employees with the
subject line: “Meeting @ 9am”. The body of the
message
read:
“
The
meeting has been moved to 9am in the board room.
Delmary please tell Lauren.
Annette please tell Nediswa.”
There is a dispute whether this meeting was intended to be a
consultation meeting as envisaged by s 189 of the LRA, or simply
a
regular weekly meeting. More of that later.
On 14 May 2009 Adams was provided with an “exit pack”
containing his unemployment insurance form (UI-19); his pension
release form; and a letter dated 15 May 2009 “confirming”
that he would be “released of [his] duties with immediate
effect”. In an affidavit opposing an earlier application for
condonation, DCD’s human resources manager, Ms Jino
Swart,
said this was given to him “... on the assumption that he
would be retrenched at the end of the s189 process.”
On the
UIF form form, his termination date was recorded as 30 June 2009 and
the reason for termination was given as “retrenched/staff
reduction”.
It is disputed whether Adams remained at work for the rest of that
day, Thursday 14 May 2009.
It is common cause that Adams was ill and not at work on Friday 15
and Monday 18 May 2009. On 19 May, Swart invited him to a
meeting.
This took place on 22 May 2009. At the meeting, she gave him a copy
of a staff communiqué dated 21 May 2009.
The communiqué
deals largely with applications for a voluntary severance package,
reminding employees that it would be
open for applications until 25
May 2009. It states that: “Employees who haven’t applied
by this date will only receive
the normal package, as stipulated
above”. It continues to refer to organograms for particular
departments and explaining
a “spill and fill” process
for filling remaining positions:
“
Where
there are more employees in a particular job category than positions
on the organogram, all of those employees will be entitled
to compete
for the positions on the organogram. The competitive process will
entail an interview with a panel and the panel will
determine the
employees for the positions.”
Adams received an undated letter from DCD’s general manager,
Andries Joubert, headed “TERMINATION OF EMPLOYMENT IN
ACCORDANCE WITH SECTION 189” and informing him that his
employment would be terminated with effect from 29 May 2009.
Automatically unfair dismissal?
Adams claims, firstly and primarily, that his dismissal was
automatically unfair in terms of s 187(1)(g) of the LRA, which
states that:
“
A
dismissal is automatically unfair if the reason for the dismissal is
... a transfer, or a reason related to a transfer, contemplated
in
section 197 or 197A.”
It is common cause that Adams was dismissed shortly after his
contract of employment had been transferred from Global to DCD
in
terms of section 197. But was the reason for the dismissal that
transfer, or a reason related to the transfer?
At first blush, it would appear so. In the letter that DCD issued in
terms of s 189(3) on 11 May 2009, it reminds affected employees
that:
“
In the
original submissions to the Competition Commission the employer
stipulated that rationalization of the support functions
... of the
three businesses may result in the reduction of 28 positions.”
The notice also states that there are no alternatives available,
“consequent to the proposed merged support structure,
requiring lower staffing levels”. From these excerpts, it
seems clear that the merger led to rationalization and hence
redundancy consequent to the merger, ie as a result of the merger.
And in her affidavit in the condonation application, Swart
says the
following:
“
From
an original headcount of 108 employees, the merger had the effect of
increasing DCD’s staff compliment [
sic
]
by almost 4 times to 397 full time workers. This increase, together
with the economic situation as aforesaid, necessitated that
the
Respondent follow a restructuring exercise, which unfortunately also
resulted in the retrenchment of a number of employees”.
She also states further on:
“
Adams
was part of a group of buyers of Globe whose positions were earmarked
for restructuring as these positions had all become
redundant
consequent to the merger.”
On the other hand, Ms Pamela de Swardt (DCD’s financial
manager) testified that, even before the merger, Globe had been
struggling financially – hence it issued a notice of
contemplated dismissals in terms of s 189A on 26 February 2009. That
notice was withdrawn after the merger.
What, then, was the real reason for Adams’s dismissal? This
needs to be determined in order to ascertain whether it was
the
transfer, or “a reason related to” the transfer from
Globe to DCD.
The guidelines to determine whether a dismissal falls within the
ambit of s 187(1)(g) were neatly summarised in
Van der Velde v
Business Design Software (Pty) Ltd
2
and in Du Toit
et al, Labour Law Through the Cases
3
.
I can do no better:
The applicant must prove the existence of a dismissal and establish
that the underlying transaction is one that falls within
the ambit
of s 197;
The applicant must adduce some credible evidence showing that the
dismissal is causally connected to the transfer in an objective
sense;
If the applicant succeeds in discharging these evidentiary burdens,
the employer must establish the true reason for the dismissal,
being a reason that is not automatically unfair;
If the employer relies on a potentially fair reason as the true
reason for dismissal, the court must apply a two-stage test
of
factual and legal causation to determine the true reason for
dismissal:
The factual causation test is: ‘But for the transfer, would
the dismissal have taken place?’. If the answer is
in the
affirmative, the legal causation test must be applied.
The legal causation test is, ‘Was the transfer the main,
dominant, proximate or most likely cause of the dismissal in
an
objective sense?’.
If the reason for the dismissal was not the transfer itself, it may
nevertheless be a reason related to the transfer.
To determine whether the reason was related to the transfer, the
court must determine whether the dismissal was used by the
employer
to avoid its obligations under section 197.
If it was, the dismissal was related to the transfer and hence
automatically unfair.
From the excerpts from DCD’s s 189 notice and Swart’s
affidavit, quoted above, it is clear that the underlying transaction
– ie the Globe-DCD merger – is one that falls within the
ambit of s 197 and is causally connected to the transfer.
Can the
employer establish that the true reason for the dismissal is not the
transfer?
DCD says that, but for the transfer, Adams would still have been
dismissed by Globe. De Swardt testified that Globe would have
continued with its restructuring, had the merger not proceeded.
After the merger, there was still a shortage of new projects
–
there is no indication that Globe would have survived financially,
had it not merged.
On the evidence before me, I cannot find that the transfer was the
main, dominant, proximate or most likely cause of dismissal.
The
merger did lead to duplication and rationalization, and may well
have been the cause of some dismissals. However, the evidence
that
the position of buyer at Globe (that Adams occupied before the
merger) was in any event in jeopardy, could not be seriously
disputed. In fact, the merger was seen as a lifeline in
circumstances where Globe was in dire straits financially and was
about
to embark on a large-scale retrenchment in terms of s 189A of
the LRA. As part of the conditions imposed on the merger by the
Competition Commission, blue collar workers were insulated against
retrenchment for a period of 12 months, but not the 28 white
collar
workers, including buyers.
In short, it seems that Globe would most probably have dismissed
Adams for operational requirements, had it not been for the
merger.
The merger was not the main, dominant or most likely cause for his
dismissal. Neither is there any evidence that DCD
used the dismissal
to avoid its obligations under section 197 – that had already
been addressed by the Competition Commission,
and the employer
fulfilled the obligations imposed by the Commission.
I cannot find that the dismissal was automatically unfair in terms
of s 187(1)(g) of the LRA. But was it nevertheless unfair?
In order
to decide this, the sequence of events needs to be considered
against the requirements of s 189 of the LRA.
Procedural fairness
Adams’s complaint is that the Respondent failed to meet the
procedural requirements set out in section 189 of the LRA.
Section 189 provides as follows:
“
189
Dismissals based on operational requirements
When an employer
contemplates dismissing one or more employees for reasons based on
the employer’s operational requirements,
the employer must
consult:
any person whom the employer
is required to consult in terms of a collective agreement;
if there is no collective
agreement that requires consultation-
a workplace forum , if the
employees likely to be affected by the proposed dismissals are
employed in a workplace in respect of
which there is a workplace
forum; and
any registration trade union
whose members are likely to be affected by the proposed dismissals;
if there is no workplace
forum in the workplace in which the employees likely to be affected
by the proposed dismissals are employed
,any registered trade union
whose members are likely to be affected by the proposed dismissals;
or
if
there is no such trade union, the employees likely to be affected by
the proposed dismissals or their representatives nominated
for that
purpose.
The
employer and the other consulting parties must in the consultation
envisage by subsections (1) and (3) engage in a meaningful
joint
consensus-seeking process and attempt to reach consensus on-
Appropriate
measures-
To
avoid the dismissals;
To
minimise the number of dismissals;
To
change the timing of the dismissals; and
To
mitigate the adverse effects of the dismissals; and
the
method for selecting the employees to be dismissed ; and
the
severance pay for dismissed employees.
The
employer must issue a written notice inviting the other consulting
party to consult with it and disclose in writing all relevant
information, including, but not limited to-
the
reasons for the proposed dismissals;
the
alternatives that the employer considered before proposing the
dismissals , and the reasons for rejecting each of those
alternatives;
the
number of employees likely to be affected and the job categories in
which they are employed;
the
proposed method for selecting which employees to dismiss;
the
time when, or the period during which, the dismissals are likely to
take effect ;
the
severance pay proposed;
any
assistance that the employer proposes to offer to the employees
likely to be dismissed;
the
possibility of the future re-employment of the employees who are
dismissed;
the
number of employees employed by the employer; and preceding 12
months;
(a)
The provisions of section 16 apply, read with the changes required
by the context , to the disclosure of information in terms
of
subsection (3).
(b)
In any dispute in which an arbitrator or the Labour Court is required
to decide whether or not any information is relevant,
the onus is on
the employer to prove that any information that is has refused to
disclose is not relevant for the purposes for
which it is sought.
The
employer must allow the other consulting party an opportunity during
consultation to make representations about any matter
dealt with in
subsection (2), (3) and (4) as well as any other matter relating to
the proposed dismissals.
(a)
The employer must consider and respond to the representations made
by the other consulting party and, if the employer does
not agree
with them, the employer must state the reasons for disagreeing.
(b)
If any representation is made in writing the employer must respond in
writing.
The
employer must select the employees to be dismissed according to
selection criteria-
that
have been agreed to by the consulting parties; or
if
no criteria have been agreed, criteria that are fair and objective.”
The test for compliance with section 189 is objective, not
subjective. A mechanical checklist approach to determine whether the
provision has been complied with is inappropriate. The proper
approach is to determine whether the purpose of the section, namely
a joint consensus-seeking process, has been achieved.
4
Substantive and procedural fairness are often interlinked in
retrenchment cases. There is no bright dividing line. Although it
is
not required that the procedural guidelines in s 189 be followed to
the letter, it is nonetheless expected of the employer
to engage in
the process meaningfully and with an open mind. The important
question that the court will ask is whether or not
the employee who
is retrenched had a proper and fair opportunity to consult over all
issues that are relevant to his or her retrenchment
and which may
have an effect on his or her continued employment.
5
In this case, DCD did issue a notice on 11 May 2009 that is in
substantial compliance with subsection 189(3). The dispute is
whether it complied with its obligations in subsections (5) to (7).
Adams was not a member of a trade union or a workplace forum.
Was
there sufficient consultation with him to make his dismissal
procedurally fair?
Did Adams have sufficient knowledge?
Adams’s case is that he only received the section 189(3)
notice on 11 May 2009. This notice did not invite him to a
consultation
meeting; it proposed commencing consultations on 13 May
2009, but did not specify a time or place for such a consultation
meeting
to be held.
Pamela de Swardt testified that, by 11 May 2009, Adams knew that he
might be retrenched because she had discussed this with those
who
might be affected in her department, including Adams. She held
informal meetings with groups as well as with individuals
in her
department. This was confirmed by Shihaam Crowie, another buyer; and
Lauren Roberts, a costing clerk. Crowie testified
that she attended
one such meeting where Adams was present. She referred to as an
informal “stand-up” meeting where
De Swardt mentioned
the possibility of retrenchment to them. Under cross-examination,
she said that this meeting took place before
the merger, while she,
Adams and De Swardt were employed by Globe. De Swardt said that the
merger could lead to retrenchments.
Roberts’s evidence was
that Pamela de Swardt prepared ‘us’ for the meeting of
13 May 2009, referring to employees
in her department which included
Adams. Roberts also stated that she had heard from other people,
before 13 May 2009 that there
would be retrenchments. This was
“through the grapevine” and the talk was mostly about
voluntary severance packages.
Adams testified that he first became aware of the fact that he faced
possible dismissal when he received the notice in terms
of s 189(3)
on 11 May 2009. As he did not belong to a trade union or workplace
forum, no-one was mandated to represent him. Due
to his long
experience at Globe, he did not anticipate that he would be affected
by retrenchment. He had been working at Globe
since February 2007.
He denied that he had attended a prior meeting with Pamela de
Swardt, as he had not been invited to such
meetings.
Crowie’s evidence that De Swardt did address a meeting where
possible retrenchment was discussed, and where Adams was present,
was vague and unsatisfactory. She could not remember when it took
place, testifying in her evidence in chief that it was in April
2009, and under cross-examination that it was before the merger. The
merger was approved with effect from 1 April 2009. On the
probabilities, Adams must have known “through the grapevine”
that there was talk of retrenchment and of voluntary
severance
packages in the air; however, I accept his evidence that he was not
specifically informed that he faced possible dismissal
before he
received the s 189(3) notice on 11 May 2009.
The Section 189(3) notice states that: “The employer proposes
commencing consultations on these matters on 13 May 2009”.
George Manjo, who was an accountant at Globe and opted for voluntary
retrenchment in May 2009, testified that he interpreted
this to mean
that there was a meeting to be held on 13 May 2009 unless there was
a contrary indication. Adams suggested that
this was not the meaning
of the letter. It did not suggest any specific time or place.
There is nothing in the notice of 11 May 2009 to suggest that the
affected employees – including Adams – were made
aware
of a definite consultation meeting to be held on 13 May 2009. It
refers merely to a proposal by management. In the absence
of any
counter-proposal or agreement to a venue and time, I cannot accept
that Adams had been invited to a consultation meeting
on 13 May
2009.
Adams further testified that he was not aware of the subject of the
email from Pamela de Swardt to his departmental colleagues
at 07:18
on 13 May 2009, headed ‘Meeting @ 9am’, and stating in
the body of the email message: “The meeting
has been moved to
9am in the board room…”. De Swardt’s evidence was
that she sent the email to Adams and others
on 13 May 2009 to change
the time of “the meeting” to 09:00. It is common cause
that departmental meetings were usually
held at 07:00 or 07:30.
There is nothing in the email to suggest that this was to be an
extraordinary consultation meeting over
pending dismissals for
operational requirements; nor is there any prior correspondence
inviting the employees in that department
– or indeed, all of
the 28 potentially affected employees – to a consultation
meeting at an earlier time that had
to be moved to 09:00. On the
probabilities, I accept Adams’s evidence that he was not aware
that the meeting scheduled
for 09:00 on 13 May 2009 was meant to be
a consultation meeting over possible retrenchments.
The meeting of 13 May 2009
Adams did attend the meeting on 13 May 2009. Jino Swart, DCD’s
HR manager, addressed the meeting. She testified that the
purpose of
the meeting was to inform employees of the contents of the section
189(3) notice, and to discuss the retrenchment
process. The meeting
was not only attended by buyers. She went through the section 189(3)
notice and discussed its contents with
those present.
Adams’s legal representative put it to Pamela de Swardt that
only severance packages were discussed in the meeting, and
not
substantive issues around ways to avoid or minimise dismissals, to
change the timing of dismissals, to mitigate the adverse
effects, or
selection criteria. She responded that she “could not think
that it would be”, that questions would have
been pertinent,
but that she could not clearly recall what was discussed.
Jino Swart denied that she only discussed voluntary severance
packages at the meeting. She went through the contents of the letter
of 11 May 2009 and also explained the process for claims from the
Unemployment Insurance Fund. She then opened the meeting to
the
floor for questions, and also explained that employees would have to
compete for positions. The meeting lasted about 50 minutes.
George Manjo’s evidence was that six employees that he was
aware of – including himself -- had raised with DCD Dorbyl
that they wished to accept voluntary packages, for various reasons,
such as their age (he was over 55). His evidence was that
at the
meeting of 13 May 2009 they voiced this request, and the rest of
those present did not wish to take voluntary packages
because they
were young and in debt. It appears from his evidence that the main
discussion topic at the meeting was that of voluntary
severance
packages.
Manjo testified that Adams became upset and vocal about what was
said. While he was upset, he was aggressive and interrupted
the
meeting a few times, and even jumped up at some stage. The other
employees asked him to sit down. According to Manjo, some
of Adams’s
questions were not answered to his satisfaction and he was becoming
frustrated. Questions about selection criteria
were not answered
properly.
Lauren Roberts also attended the meeting on 13 May. The main thing
she could remember about the meeting, was that Jino Swart
explained
the voluntary severance packages to them. Adams was upset because he
did not get the answers that he wanted to hear,
and was asked by the
others to keep quiet because they wanted to hear what Jino had say.
It is clear from the evidence of the applicant, as well as the
respondent’s witnesses, that Adams did become emotional
during
the meeting of 13 May. Swart did not answer his questions to his
satisfaction. It is also clear, taking into account the
evidence of
all the witnesses, that the main focus of the meeting was the issue
of voluntary severance packages. The meeting
lasted less than an
hour. It can hardly be described as a joint consensus-seeking
exercise as envisaged by s 189 of the LRA.
The events after the meeting of 13 May 2009
After the meeting of 13 May 2009, Pamela de Swardt said that she saw
Adams storming out of the building. She assumed that he
had gone to
cool off for the day in his anger. She said she “would have”
instructed Delmarie Barry and Shihaam Crowie
to fill in for Adams to
fulfil his tasks in his absence. Shihaam Crowie corroborated this in
her evidence, stating that she was
asked by Pamela de Swardt to fill
in for Adams because, according to De Swardt, Adams had left the
office.
Crowie saw Adams packing his personal belongings and leaving his
office, which was next door to hers, although she did not see
him
leaving the building. Delmarie Barry told her he was leaving, and
Pamela de Swardt told her that Adams had left.
Pamela de Swardt testified that it was possible that she had told
Jino Swart that Adams had left work. Jino Swart said she was
given
that information by Pamela de Swart. Jino Swart suggested that a
letter be issued to Adams to confirm that he “had
requested to
be released”, and to state that the retrenchment process was,
however, still continuing. Jino said the letter
was only handed to
Adams on 15 May 2009, but that is impossible – it is common
cause that he was not at work on that day.
Adams says he never left work after the meeting. He might have gone
to the workshop and he might have taken his belongings with
him if
it was close to end of business that day.
Adams’s evidence in this regard was not entirely satisfactory.
However, he did acknowledge that he was “infuriated”
by
what transpired in the meeting; he nevertheless went back to his
office and continued with his daily tasks. The possibility
that he
went to the workshop and stores and may have taken his bag with him,
was proffered in his examination in chief, and not
only elicited in
cross-examination. It is possible that he may have left early on
that day, given his state of mind; however,
there is nothing to
suggest that he had agreed to his dismissal.
The events of 14 May 2009
It was put to Jino that Adams was effectively dismissed on 14 May
2009, referring to the documents handed to him on that date.
These
included his UIF form; his pension fund details; and the letter
dated 15 May 2009, signed by Jino Swart, reading:
“
Dear
John
This letter serves to confirm
that you have requested to be released of your duties with immediate
effect.
We would like to bring to your
attention that the s 189 process is still in progress.
Thank you.
J Swart
HR Manager.”
Adams’s evidence was that he went to Annette Kruger’s
office on 14 May 2009 at about 09:30. Kruger and Jihaan Railoen
gave
him the three documents. He refused to countersign the letter dated
15 May 2009 and signed off by Swart. Instead, he told
them that he
had not requested to be “released of his duties”. Later
that afternoon, he was given a spreadsheet setting
out his notice
pay for June 2009 and is severance pay. The spreadsheet was
generated at 15h40 on 14 May 2009. He went to greet
some colleagues,
returned to his office to collect his belongings, and left for home.
Adams admitted that he did not query the alleged dismissal on 14 May
2009 with Jino Swart or with Pamela de Swardt, as it was
clear that
he had already been dismissed. Only after he had discussed the
events with his wife over the following weekend, did
he contact
Swart again.
The events after 14 May 2009
It is common cause that Adams was on sick leave from Friday 15 to
Monday 18 May 2009.
On 19 May 2009, Adams returned to work. He went to Pamela de Swardt
to get permission to go to the bank that morning. According
to him,
De Swardt’s response was: “John, I don’t know why
you are discussing this with me because officially
you no longer
work here.” De Swardt could not recall that conversation under
cross-examination – one of a number
of things of which she had
no clear recollection – but conceded that it was likely that
she would have said something to
that effect.
In cross-examination, Adams also said that he was hoping to speak to
Jino Swart about the status of his employment when he went
back to
work on 19 May 2009. This is not inconsistent with his evidence in
chief, although it expanded upon it; and his version
of Pamela de
Swardt’s words to him were not denied by the respondent’s
counsel in his cross-examination.
Shocked by De Swardt’s attitude, Adams went home and
telephoned Swart. She invited him to a meeting on 22 May 2009.
When Adams saw Swart on 22 May 2009, she gave him a copy of the
staff communiqué dated 21 May 2009 and setting out the
terms
of the voluntary severance package. She reminded him that
applications for the enhanced package had to be submitted by
Monday
25 May 2009. She also advised him to take part in the competitive
process and to apply for the job of buyer on the new
structure. His
response was that it would be futile as he had already been
dismissed.
Individual consultations
Jino Swart testified that, after the meeting of 13 May 2009,
throughout the rest of May 2009 she had at least four meetings with
every person affected by the retrenchment, except for Adams. She was
available to talk with anyone who had questions regarding
the
retrenchment process. George Manjo and Lauren Roberts confirmed that
they met with Swart after 13 May. Manjo opted for voluntary
retrenchment. Swart claimed that, had Adams not left work, he would
have had the benefit of the individual consultative sessions
with
her. But it is clear from the evidence that Adams had been given his
UIF form, indicating that he had been retrenched, and
the other
documentation comprising the retrenched employees’ “exit
pack” on 14 May 2009. There was no further
attempt by DCD to
invite him to a further consultation meeting. No-one contacted him
while he was at home; and when he contacted
De Swardt, she told him
that he no longer worked there. Even when he contacted Swart on 19
May and she invited him to see her
on 22 May, he was merely made
aware of the terms of the voluntary severance package and the
competitive process; there was no
attempt at joint problem-solving.
On 14 May 2009 there was a meeting in the logistics department
hosted by Bill Fleur, the logistics manager. Lauren Roberts, who
attended the meeting and who was later retrenched, did not give any
evidence about the purpose or content of the meeting. Adams
was at
work on this day but did not attend the meeting. He explained that
Fleur told him that DCD would not be able to retain
him. There was
no attempt to engage in joint problem-solving with Adams.
Seletion criteria
DCD proposed “position and skill” as the selection
criteria to be used in its s 189(3) notice.
Jino Swart testified that, at the end of the retrenchment “process”,
there were two buyer positions available in
Adams’s section.
This was contrary to the statement in the s 189 notice that stated:
“
You
currently hold the position of Buyer. The employer views this
position as redundant, due to the restructuring of the Buying
departments, consequent to the merging of the Departments of
DCD-Dorbyl Marine, Globe Engineering Works and Nautilus Marine. The
company has taken into consideration such factors as skills and
experience.”
Swart testified that the criteria used for selection were locality,
skill and experience, then LIFO. She said Shihaam Crowie
had more
skill and experience than Adams. It is common cause that Adams had
longer service than Crowie. Swart could not comment
on Adams’s
claim that he was more a suitable candidate for a buyer’s
position than Crowie. She simply relied on the
spreadsheet that had
been based on information provided by Bill Fleur, the logistics
manager.
Crowie’s evidence was that Adams showed her the processes of
Globe, but not how to do her work, of which she had 16 years’
experience. She was in fact employed to implement new systems in
Adams’s section.
Adams denied this. He was adamant that he was not only more
experienced, but also more skilled than Crowie. And in any event,
the “Key Performance Areas” used as selection criteria
to retain Crowie were never discussed with him.
Crowie was taken to task on the KPA’s under cross-examination.
She conceded that she had no experience on 6 out of the
10 KPA’s;
that she and Adams had experience in 3 of them; and that none of the
buyers had experience in the remaining one.
She also acknowledged
that Adams had more specific product knowledge than she did.
The selection criteria were not only unilaterally imposed by DCD,
they were not consistently applied; and in any event, there
was no
consultation with Adams over either the method for selecting
employees to be dismissed with Adams. It did not meet the
requirements of s 189 of the LRA.
Conclusion
The procedure that DCD followed leading to Adams’s dismissal
falls far short of the requirements of the Act.
The attempt at consultation was premised on the notion, conveyed to
Adams, that the position of Buyer was redundant – an
allegation that later proved to be false. There was no proper
attempt to engage with him in an attempt to avoid his dismissal
or
to seek alternatives, such as accommodating him in the new
structure. The selection criteria were neither agreed nor objective,
and he had no opportunity to provide his input on the so-called
KPA’s that were used to prefer Crowie – who had shorter
service – over him.
The employer chose to accept that Adams had elected to “be
released” from his employment before any meaningful
consultation had taken place, despite all indications to the
contrary. Its misplaced belief is not borne out by the objective
facts.
I find that the dismissal was procedurally unfair. Adams was 58
years old at the time of his dismissal. There is no evidence
that he
has been able to find other employment. At this stage of his life,
it is unlikely. He does not seek reinstatement. I
consider
compensation equal to twelve months’ remuneration to be fair.
Both parties asked for costs to follow the result. No relationship
remains between them. In law and fairness, I can see no reason
why I
should not heed that request.
Order
The respondent’s dismissal of the applicant was procedurally
unfair.
The respondent is ordered to pay the applicant compensation
equivalent to twelve months’ remuneration, calculated on the
basis of his remuneration at the time of his dismissal.
The respondent is ordered to pay the applicant’s costs.
_______________________________
STEENKAMP J
Date of hearing:
4-8 November 2010; 28 March 2011; 6, 13 April
2011
Date of judgment:
17 May 2011
For the applicant:
Mr N Masizana
Legal Aid South Africa
For the respondent:
Adv N Mangcu-Lockwood
Instructed by Webber Wentzel
1
Act
66 of 1995 (“the LRA”).
2
[2006]
10 BLLR 1004
(LC) at 1014 E – 1015 C.
3
LRA
8-28 (13) – LRA 8-28(14).
4
Johnson
& Johnson (Pty) Ltd v CWIU
[1998]
12 BLLR 1209
(LAC).
5
Maritz
v Calibre Clinical Consultants (Pty) Ltd & another
(2010)
31
ILJ
1436
(LC) 1441 B-F, citing with approval
Shuttleworth
v Afgri Producer Services (a division of Afgri Operations Ltd)
(unreported, JS 799/05) para [3].