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[2013] ZALCJHB 97
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Matji and Others v Kaya FM 95.9 (Pty) Ltd (JS 620/2011) [2013] ZALCJHB 97 (16 January 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
case
no JS620/2011
In the matter between:
THABO MATJI AND 3
OTHERS
....................................................................
Applicants
and
KAYA FM 95.9 (PTY) LTD
...........................................................................
Respondent
Heard: 7- 8 May and
18-19 June 2012
Delivered: 16 January
2013
Summary: Dismissal on
the basis of operational requirements. Dismissal was substantively
and procedurally fair.
JUDGMENT
AC BASSON J.
Introduction
The applicants in this
matter are Mr Thabo Matji (“Matji”) Ms Nomsa Mahlaule,
Mr Boas Molobi and Ms Ntokozo Tshabalala.
All four individual
applicants were members of the Sales Team of the respondent (Kaya FM
– hereinafter referred to as “Kaya”
or “the
station”) until their dismissal on the basis of operational
requirements.
The applicants challenge
the substantive and procedural fairness of their dismissal.
Evidence on behalf of
the respondent
Mr Johnstone, Mr Mdlela,
Ms Reddy and Ms Tyra Sharnock testified on behalf of Kaya. Johnston
who is the Station Manager since
17 May 2010 gave extensive evidence
regarding the rationale for introducing a new business model for
Kaya and the necessity of
creating new posts in the new business
structure. His evidence in respect of the business rational was
corroborated by the evidence
of Mdlela, Reddy and Sharnock who
confirmed the reasons for introducing the new business model.
Johnstone testified that
he was responsible for the day to day running of Kaya and that his
duties include seeking new opportunities
for the station. He
testified that he invited the Sales Team to a meeting on 17 November
2010. Present at the meeting was the
Managing Director, the
Management Team and the Sales Team. It is the task of the Sales Team
to sell advertisement opportunities
to advertisers. Kaya relies on
advertisements as an important source of its revenue. Mdlela (the
Sales & Marketing Manager)
presented the new business model to
the Sales Team and explained to them,
inter alia,
the
challenges in the advertising market posed by new trends such as
social media platforms.
Johnstone explained in
detail why it was necessary to revisit the existing business model
and why it was necessary to replace
it with a new business model.
Briefly: the changes in the radio environment and the challenges and
competition faced by radio
stations necessitated a new and broader
strategy of doing business in the radio industry. Radio stations no
longer functioned
in the traditional radio environment but
functioned in a digital environment which encompassed the internet,
facebook, twitter
and other digital applications. The world of radio
has therefore significantly changed with the advent of the digital
era. It
is therefore necessary for Kaya to tap into this new
environment in order to secure its revenue. It is also becoming
increasingly
necessary to offer to advertisers not only the
opportunity to advertise on radio but also the opportunity to
advertise by means
of “interactive advertising campaigns”.
The old model of advertising does not take into cognisance the new
trends
offered by the various digital applications. One of the new
trends in radio is the so-called “streaming” that allows
for radio broadcasts via the internet. The new form of advertising
also allows for an additional and powerful form of advertising
through the so-called “blogging”. During his
presentation, Johnstone pointed out to the Sales Team that other
companies
such as Primedia Broadcasting have already been utilizing
these new trends to sell advertising to clients and Kaya, if it
fails
to respond to this new digital environment, would not be able
to compete with them for advertising revenue.
In order to optimise
revenue it became therefore increasingly necessary for the station
to reconsider its strategy particularly
in view of the fact that the
revenue generated from so-called direct sales remained stagnant and
in fact dropped over the past
three years. In respect of direct
sales, the shareholders and the Board of Directors became
increasingly concerned about the
fact that Kaya’s direct sales
compared poorly with the direct sales of other radio stations.
Johnston explained that targets
were set for the different months.
These targets differed in line with “seasonable spending”
in respect of advertising.
The revenue brought in by direct sales
was not, according to the evidence, sufficient. The problem was
compounded by the fact
that the Sales Team did not always reach
their revenue targets. In this regard, on 15 February 2011, Matji
received a letter
from Kaya informing him of the fact that he did
not reach his agreed targets. He was informed that he was required
to attend
a performance enquiry to discuss his underperformance. On
4 March 2011 he was given an ultimatum to reach his targets.
Johnstone explained that
the station had attempted to assist the Sales Team in the past to
try and increase the revenue generated
by them and that in June to
August 2010 outside consultants were brought in to assist them over
a period of three months. He
testified that this intervention did
not have the desired effect and sales continued to be below
expectations. He explained that
he had previous experience with
other radio stations and that the revenue generated by the Sales
Team was not satisfactory.
Meeting of 17 November
2010
A meeting was scheduled
with the sales team on 17 November 2010. Mdlela made a comprehensive
presentation entitled “Business
Development Business Model”
to the Sales Team. From the presentation, it appears that it was
discussed that the object
of the presentation was to create an
overarching strategy for Sales and Marketing. All the applicants
also received a copy of
the presentation by e-mail. Johnston
explained the proposed new business model to the Sales Team and
explained to them why it
was necessary to introduce a new business
model. He also explained to them that this model would assist the
Sales Team to increase
their revenue. Price Waterhouse Cooper’s
media outlook for 2010 -2014 was discussed with the applicants. The
fact that
radio has fast moved into an interactive era meant that
Kaya had to be more flexible around their formats and content. It
was
explained that because the Sales Team was not selling these new
products to advertisers (referred to by Johnstone as a “complete
solution”) it was necessary for them to move into this
direction as proposed by the new business model in order to broaden
the reach of radio to include other digital and interactive forms of
advertising. It was also explained to the Court that, as
a result of
the recession, advertisers increasingly required maximum returns
from radio stations which could only be attained
if the product
offered to advertisers was broadened considerably.
It was specifically
discussed with the applicants that Kaya proposed a strategic
business model in its direct sales capability
and output. The first
part of the model would largely be represented in the profile of a
Media Marketing Sales Consultant and
that the job profile of this
Media Marketing Sales Consultant would be more suitably represented
by the needs of the largest
commercial independent regional station
in Gauteng, the growing needs of the advertisers and the ever
dynamic competitive landscape
in which the station operates. The
existing position of Business Development Executive (held by the
existing Sales Team) would
therefore be replaced by this new
position. As will be pointed out, Matji disputed that the new
position included new attributes
and testified that the existing
Sales Team had already included as part of their functions aspects
of this new business model.
I do not accept that the applicants have
already been doing the functions envisaged for the new position.
Firstly, if regard
is had to the job description contained in
Matji’s contract of service and that contained in the
advertisement (which advertised
the new position), it is clear that
the new position included various other and additional functions.
Secondly, the new business
model clearly stipulated that the job
content would change by more than 50%. The fact that this was
discussed during the meeting
and the fact that the Sales Team has
accepted this is clear from the evidence and particularly the
undisputed minutes of the
meeting. Thirdly, at no stage during the
presentation in November and December (or shortly thereafter) did
the applicants dispute
that the job contents would change. The
different elements of the new position as Media Marketing Sales
Consultant were also
discussed with the Sales Team. More in
particular, it was discussed with the Sales Team that this position
requires a good understanding
of how digital, electronic, mobile and
print media works and integrates with radio. The specific
requirements in respect of what
would be required from the marketing
side were also discussed with the applicants. It was also discussed
with the applicants
what was required of this new position in
respect of sales and offering products to clients. It is instructive
to point out that
it was specifically recorded that there was no
option that the positions would stay the same.
Johnstone therefore
explained that the Sales Team was not active in the new digital
environment and that they were not experienced
in offering a
complete solution to the advertiser that would encompass not only
radio but also sms, tweet, internet and blogging
opportunities. He
explained with reference to the new model that that was the reason
why the new model was different and why
the new model now proposed a
position entitled “Media Marketing Sales Consultant” as
opposed to the old job title
of “sales manager”. This
position required additional skills. He explained that the station
needed people who would
be able to offer these services to people
and that the current Sales Team were not geared to operate in this
new environment
that would have to be in a position to offer a
complete “one stop shop” to clients in which all of the
different
advertising options will be available.
According to the
evidence therefore, the rationale for the changes were explained to
the Sales Team during the meeting in November
2010 and the fact that
the current business model had to be adopted; that there would be
changes in the sales department and
that the job contents would
change by more than 50%.
On 28 November 2010,
Mdlela sent an e-mail to the Sales Team to remind them that he had
asked for feedback before 25 November
2010. When he did not receive
any feedback, he extended the deadline to 1 December 2010. Apart
from one e-mail, no member of
the Sales Team responded with
suggestions. Johnstone testified that retrenchment was not
contemplated at that stage and that
that was the reason why the
section 189 notice was not issued to the Sales Team at that point in
time. Tshabalala responded to
the e-mail dated 29 November 2010 and
requested a further meeting in which he pointed out that he was
under the impression that
feedback would be given at the next
meeting.
The minutes of the
meeting was sent to the applicants on 17 November 2010. The contents
of the minutes were not disputed by the
applicants at the time. The
minutes record,
inter alia,
who was present and what was
discussed. It is specifically recorded that it was discussed that
job descriptions would change and
that training would be given once
the new model has been implemented.
By the end of that
presentation, the Sales Team was therefore fully aware of what the
contents of the new business mode entailed;
what the rationale for
the new business model was and that their jobs were to change in
order to execute the proposals contained
in the new business model.
As of 19 November 2010, the Sales Team therefore could not have been
under any misinterpretation that
their job contents would have
remained the same. Johnston explained that Kaya discussed the model
with the Sales Team in an attempt
to reach joint consensus before
the model was introduced.
Reddy, the operations
manager, also took care of financial matters and Human Resources at
Kaya. She confirmed the rationale for
introducing the new business
model. She also confirmed that the job content of the new positions
were totally different in the
new model. More importantly, she
testified that the Sales Team accepted the new business model and
that this acceptance is recorded
in the minutes. She confirmed that
the section 189 notice was not issued earlier than January 2011
because retrenchment was not
contemplated at that stage. Once the
job specifications were drafted the applicants were invited to apply
for positions in the
new structure. She also confirmed that,
although the applicants did not attend the profiling exercise (see
hereunder), they could
have attended the interviews for the new
positions and that they were then able to demonstrate to the
interview panel that they
indeed had the necessary skills. Reddy
also testified that she had individual discussions with the
applicants in January 2011.
According to Reddy, Tshabalala was
interviewed and was offered a position after the interview. (I will
return to the position
of Tshabalala hereinbelow.) The applicants on
the other hand showed no interest whatsoever in the positions.
Scharnock, who holds the
position of sales, confirmed that she was involved with the training
of the Sales Team in June/ July
2010 and confirmed that the training
made no difference in the performance of the Sales Team. She also
confirmed that she was
involved in the meeting of November 2010 when
the new model was discussed. She also confirmed that the selling
function under
the new business model differed vastly from the old
model.
Second meeting: 6
December 2010
A second meeting was
held on 6 December 2010 in order to consider feedback from the Sales
Team. It appears from the minutes and
the evidence on behalf of Kaya
that on 6 December 2010, the Sales Team had accepted the new
business model without any change.
Mdlela also confirmed that the
team had accepted the new business model without any changes. As
already pointed out, the minutes
of the meetings held on 17 November
2010 and 6 December 2010 were e-mailed to the members of the Sales
Team. The minutes were
not disputed.
Section 189 –
Notice dated 24 December 2010
After the meetings on 17
November and 6 December, the station decided to implement the new
business model. The new job specifications
were drafted and after
that was done Kaya realised that the position of the Sales Managers
had to change in line with the new
business model. Johnstone was,
however, adamant that it was still not inevitable that the Sales
Team would be retrenched.
The section 189 notice
dated 24 December 2010 was issued to the applicants only on 11
January 2011. In terms of this notice, it
is recorded that two
meetings were held – on 17 November and one on 6 December
during which the new business model was
discussed. The notice
further records that limited responses were received from the Sales
Team and that they have been considered.
In light of this, it was
therefore accepted by Kaya that it was not in dispute that the sales
function required a significant
overhaul and improvement. The
applicants were informed that Kaya was of the view that the present
Sales Team lacked the necessary
skills to achieve the proposed
milestones and to embrace the dynamic sales and marketing effort it
required. The positions of
the direct Sales Teams were therefore at
risk in the event the members were unable to be accommodated in the
new proposed Sales
Team they would be retrenched. The team was
informed that new positions would be advertised and that the
existing Sales Team
as well as external candidates would be invited
to apply. The existing Sales Term were then invited to participate
in a so-called
“profiling” exercise whereby an external
consultant that specialised in skills assessment would conduct
personality
profiles where after the existing profiles of staff
would be compared to the KPA’s as required for the new
positions. Only
following this profiling process and the application
and recruitment process and, if it transpires that certain
individual will
become superfluous to the needs of the station, will
further consultations take place with regards to the possibility of
alternative
employment, the timing of possible dismissals for
operational reasons and severance pay. The Sales Team was also
informed that
if they had any questions and queries they should
direct these in writing to either Mdlela or Reddy.
A meeting was scheduled
to conduct the profiling. It was common cause that none of the
individual applicants attended the meeting.
(I will return to the
profiling exercises in more detail hereinbelow.)
Letter by Mdlela dated
19 January 2011
Mdlela responded to this
notice in a letter dated 19 January 2011 in which he complained
about the process followed by Kaya. He,
inter alia
, suggested
that there were not operational requirements.
Letter of 25 January
2011
The Sales Team wrote a
letter dated 25 January 2011. In this letter, they queried how they
could be assessed in the absence of
a fair performance management
system. The applicants also wrote that they intended approaching the
Labour Court for a “prohibitory
(sic) interdict”. It is
instructive to note that the applicants did not challenge the
economic rationale for the new business
model in this letter. It is
common cause that the Labour Court has not been approached.
Letter of 27 January
2011
Kaya responded to the
letter on 27 January 2011. The process followed up until that time
was summarised in the letter. In this
letter Kaya disputed that the
rights of the applicants were adversely affected. More in particular
it is stated in the letter
that Kaya wished for the team to
participate in the process of recruitment and although the deadline
for applications exclusive
to internal applicants has passed and
external applications were not yet invited, Kaya still wanted the
current team to apply.
The letter further records that no one has
yet been interviewed or appointed to the new positions. In respect
of the profiling
exercise it is recorded in the letter that the
purpose of the assessment process was not to conduct and
ex post
facto
profiling, but merely to ascertain the suitability and
skills of those employees who wished to be absorbed into the new
structure.
The applicants were informed that if they did not accept
the invitation to apply for positions, Kaya would regard that as a
waiver
of their rights and that the consultation process would then
continue. The letter ends with a statement that it is recorded that
during the meetings of 17 November and 6 December 2010 and the
latest correspondence, the applicants have not challenged the
fundamental business rationale for the desired change to the sales
and marketing model.
Despite the invitation
to participate in the recruitment process, none of the applicants
did so except for two of the Sales Team
members who did engage the
respondent and were appointed to positions in the new structure.
Letter dated 28
January 2011
The attorneys on behalf
of the applicants responded to the letter on 28 January 2011. In
this letter it is recorded that the applicants
attended the meeting
on 17 November 2010 but that they understood the presentation to be
a “proposal” to improve
the way the station does
business. It is further recorded that the applicants at no stage
understood that their positions would
be placed on risk. The letter
ends of by stating that Kaya had not engaged in a consultation
process.
Profiling exercise
Johnstone explained to
the Court that the station decided to conduct a profiling exercise
in order to assess the skills of the
Sales Team. The Sales Team was
invited to a meeting held on 26 January 2011. As already pointed
out, an outside consultant was
hired to objectively assess the
skills that the Sales Team had. Despite the fact that the Sales Team
had already received a 189
notice, they refused to participate in
the profiling assessment. Johnstone explained that even if it did
transpire that the Sales
Team did not have the necessary skills,
that did not necessarily imply that they would be retrenched. Since
the applicants had
refused to attend the profiling exercise, Kaya
was not in a position to assess their skills.
Johnstone in an e-mail
to Mdlela and Reddy confirmed that only Heather Mendes attended the
assessment session. It is recorded
in the e-mail that there was an
agreement on 6 December 2010 that the Sales Team would attend the
meeting. Johnstone testified
that they needed the skills assessment
because that was the only way in which the station could consider
whether it was necessary
to train the staff.
Advertising of
positions
Kaya internally
advertised vacancies within the station. Although the positions were
advertised before the consultation process
commenced, any prejudice
that may have been suffered by the applicants were cured by the
conduct of Kaya by offering the positions
to the applicants on
various occasions even after they have refused to apply for the
positions.
It is common cause that
except for Tshabalala, none of the applicants had applied for the
vacancies despite the fact that they
have repeatedly been invited to
do so (see hereunder). It is further common cause that a certain
Thami Malatsi (hereinafter referred
to as “Thami”) was
interviewed for a position and appointed to a new marketing
decision. It is important to point
out that Tami was successful in
her appointment despite the fact that she also initially refused to
participate in the profiling
exercise. Johnstone testified that
Thami currently performs exceptionally well and that she also
received training.
Johnston testified that
at no stage did Kaya decided not to appoint any of the present sales
people to the new positions. He explained
that they had decided on a
job description and that the candidates would have been measured
against the job descriptions. If
a candidate did not measure up,
Kaya would have trained the individuals or would have offered them
an alternative position. If
this was not possible, the option of
retrenchment would have been invoked. Johnstone was adamant that the
process that was followed
was not a sham and that the applicants
were invited to participate in the process.
It is common cause that
Tshabalala had applied for a position and that he was interviewed
and was offered a position. It is further
common cause that
Tshabalala had rejected the offer of employment. At this juncture it
must be pointed out that Tshabalala did
not testify at the hearing
and therefore offered no explanation whatsoever to this Court as to
why he had rejected the offer.
This Court has therefore not been
placed in a position to consider why it should find the dismissal of
Tshabalala unfair. In
the event it is this Court’s finding
that Tshabalala’s claim should be dismissed at the outset.
Johnstone testified
that, because none of the applicants had applied for positions in
the new structure, he assumed that they
did not apply because they
did not want to participate in the process. He testified that the
section 189 process therefore had
to continue. Johnstone, however,
testified that, despite the fact that the Sales Team elected not to
apply for positions, they
continue to persist that they were still
the Sales Team.
Letter dated 1
February 2011
The attorneys acting on
behalf of Kaya responded on 1 February to the letter by the
applicants’ attorneys dated 28 January
2011. In this letter,
it is reiterated that there were various interventions to change the
business modes structure and that
those interventions had not borne
fruit. As a result, Kaya had decided to consider a more structural
approach to sales which
approach was discussed on 17 November 2010.
The letter further confirms that the business model was emailed to
the Sales Team
and that at the meeting of 6 December 2010, the Sales
Team accepted the new business model without any changes. The letter
further
records that the applicants have not applied for the
positions and despite the fact that the positions have now been
advertised
externally and that there had been more than 200
applications. Despite the fact that they did not apply, Kaya again
extended
an invitation to the current Sales Team to apply for the
media marketing consultant positions that were advertised. Kaya
further
undertook not to interview external applicants until close
of business on Friday 4 February 2010. However, should the
applicants
fail to apply, Kaya will accept that they have waived
their right to seek roles within the new sales and business
marketing.
It is specifically disputed in this letter that Kaya had
already taken a decision to retrench the individual members of the
Sales
Team.
Letter dated 31 March
2011
On 31 March 2011, Matji
(and the applicants) received a letter giving them notice of a
further consultation in terms of section
189. The letter sets out
the procedures that have been followed up to date. The letter refers
to the fact that an undertaking
was given in February 2011 that no
positions would be filled provided that the applicants applied for
the Media Marketing Consultant
position before 4 February 2011. The
letter further records that the applicants had declined an
invitation to apply for the position.
However, despite the fact that
they have declined on various occasions to apply for a position in
the new structure, they were
once again invited to apply. They were
also, once again informed, that should they fail to seek a position
in the new structure,
their services might be terminated for
operational requirements. Matji (and the others) was specifically
informed that an attempt
was made to utilise his skills within other
areas of work but that Kaya concluded that his skills were limited
to the sales environment.
He was further informed that there was
currently a vacancy available within marketing and that he was free
to apply for that
position. Lastly, Matji was also informed that the
fact that he did not avail himself of the opportunity to participate
in the
profiling opportunity should not be regarded as a prohibition
on seeking accommodation within the new structure.
On 10 May 2011,
Tshabalala rejected Kaya’s offer of alternative employment.
Letter dated 16 May
2011
On 16 May 2011, the
applicants were given notice of a “Final Consultation in terms
of section 189”. The letter refers
to the consultations held
on 17 November 2010, 6 December 2010, an individual consultation on
13 January 2011 and a consultation
meeting held on 27 January 2011.
The applicants were informed that their positions were likely to be
filled by the end of May
2011. The applicants were invited to
consult with Kaya on alternatives to redundancy, the timing of their
retrenchment if applicable
and severance pay. A consultation meeting
was scheduled for 17 May 2011.
Further consultation
meetings
Individual consultations
with the old Sales Team were held on 17 May 2011 and a further
consultation meeting was held with Matji
on 23 May 2011.
Letter dated 27 May
2011
The applicants’
attorneys sent a letter to Kaya on 27 May 2011 in which attorneys
conceded that their clients have refused
to apply for the new
positions as they were of the view that the station has interviewed
external candidates despite the fact
that they have achieved their
targets. It is further stated that the applicants viewed the section
189 process as a sham. The
letter further states that the applicants
were willing to attend any training “in order to fully embrace
the proposed model”.
Kaya’s attorneys
responded to the letter on 31 May 2011. In the letter it is pointed
out that Kaya had a fundamental problem
with the conduct of the
applicants throughout the process and the fact that the applicants
continued to convolute the distinction
between the broader
restructuring process that commenced in November 2010 and the
performance management process which was necessitated
by the general
failure of the applicants to reach their targets. It is further
pointed out in the letter that the applicants
have continued to
refuse to participate in the section 189 process and that, despite
various invitations to apply for a position,
the applicants had
failed to do so. The letter lastly emphatically disputed the
allegation that the applicants have in fact reached
their targets.
Letter dated 31 May
2011
O
n
31 May 2011,
Matji
(and the other applicants) was informed by the station that a
decision had now been taken to retrench. They were further
informed
that they had declined to participate in any meaningful way and that
they have declined to make counter-proposals, to
participate in the
skills assessment, refused to apply for any position, propose any
alternatives employment and that they had
only criticized the
process and not the substance. Matji was informed that his
insistence to be considered for the head of sales
position was
simply “disingenuous” as the position was not vacant.
Furthermore, an interview for that position was
conducted and Tyron
was appointed as head of sales. Matji, on the other hand, had never
applied for the position.
Evidence of Matji
Matji’s evidence
was that the Sales Team realised in January 2011 that they were
going to lose their jobs. He admitted that
he knew that their
positions would be renamed but testified that he was not worried as
they were already selling advertisement
on line. According to him,
there were no changes in his duties in terms of the new business
model but conceded that they did
not use social networks as part of
their duties. When pressed in cross-examination about what exactly
the job contents were,
Matji became argumentative and vague. He
however, later conceded that they did not reject the new business
model and that they
did “embrace it”.
To a question why he did
not apply for positions, Matji responded that he was of the view
that Kaya had already made up its mind.
When pressed why he did not
apply he gave a rather convoluted argument that he did not apply
because the positions were already
advertised externally. He,
however, conceded that he received the letter of 27 January 2011 in
which it was clearly stated that
the Sales Team could apply. He
however, denied that there was a meeting with him on 13 January
despite the fact that his personnel
file records that a meeting was
held with him. In respect of the minutes of the meetings held in
November and December 2010 he
testified that they disputed the
minutes but conceded that they did not dispute the minutes at that
time.
I have evaluated the
evidence of Matji. In cross-examination he became increasingly
argumentative and evasive. Questions that
clearly posed a difficulty
to him were merely ignored and met with answers that were completely
unrelated to the question. Matji
could also not explain why crucial
aspects of his evidence, such as that they were promised training,
were never put to the witnesses
of Kaya. Matji’s evidence as
to why they did not apply for the advertised positions was also
vague. His answer as to why
he rejected the profiling process was
equally vague He also could not explain why they were surprised when
they were called to
a profiling meeting especially in light of the
fact that they were invited to the meeting. His only explanation was
that they
should have been given an agenda in advance. Matji could
also not explain why they refused to be assessed particularly as it
had been agreed on 6 December 2010 that there would be an assessment
and particularly in light of the fact that the business model
expressly pointed out that the job content would change more than
50%. Even to a direct question by this Court as to why he did
not
apply particularly as this could have saved his job, Matji could not
give a proper answer. He also could not give a proper
answer to the
question why he simply could not have attended the interview and
asked all the questions he still had about the
position. He conceded
that one of the reasons why he did not apply for the position was
because he was of the view that the section
189 process was not
properly followed.
Matji also refused to
accept that the section 189 process that was being followed was a
different process to the one also followed
by the employer during
that stage in respect of his failure to reach his targets.
It appears that Matji
was of the view that Kaya did not endeavour to correct the
non-compliance with the section 189 processes
and that they were
“tricked” to attend the profiling meeting and that they
were “surprised”. It appears
that Matji is blaming
Kaya’s management for not conducting the consultation process
in the manner he thought was fair.
I am in agreement with
the submission that the evidence of Matji was generally
unsatisfactory. He was an evasive witness who often
failed to answer
simple questions that were put to him in an attempt to evade the
difficulties that these questions posed for
his case. One of these
difficulties was his failure to explain why the Sales Team had
accepted on 6 December 2010 that the new
model needed to be
implemented over a period of time whilst at the same time insisted
that there was hardly any difference between
what he had been doing
in sales and the new position. Furthermore, in his evidence in chief
he was adamant that no consultations
whatsoever took place as
required in terms of section 189 yet he changed his story when he
was confronted with the minutes of
the meeting on 17 November. Now
he claimed that it was Kaya that was refusing to engage with him. He
further insisted that applying
for a position in the new structure
can never be equated to a consensus seeking process yet the LRA
requires parties to attempt
to reach consensus on appropriate
measure to avoid dismissing the affected employees.
Substantive fairness
of the dismissal
In terms of section
188(1)(a) of the Labour Relations Act (‘the LRA’),
1
a dismissal is
substantively unfair if the employer fails to prove that the reason
for dismissal is unfair based on the employer’s
operational
requirements. Section 213 defines operational requirements to mean
requirements based on the economic technological
structural or
similar needs of an employer. Retrenchment is a no fault dismissal.
Consequently,
the
LRA provides for very specific procedures to be followed prior to a
dismissal on the basis of operational requirements. The
Courts,
however, do not expect of an employer to follow a checklist approach
in conducting a consultation process in terms of
the LRA.
2
The process commences
with the issuing of a section 189 notice. Once the section 189
notice has been issued the law requires the
employer to approach the
consultation process with an open mind and with an attempt to reach
consensus on the issue prescribed
by section 189(2) of the LRA. An
employer may not confront the employee with a
fait
a complit
.
It was suggested on behalf of the applicants that a decision had
been taken to retrench before the process commenced. The evidence
of
Johnston is, however, clear. The section 189 notice was only issued
once it was realised that the positions of the Sales Team
were in
danger.
Furthermore,
the applicants were given various opportunities to apply for
positions. They have steadfastly refused to apply for
positions. The
applicants have also been afforded an opportunity to be assessed.
They refused this opportunity. Even after they
have refused, Kaya
urged them to apply for positions notwithstanding the fact that they
have not been assessed. They have declined
to do so. The deadline
for external applications had been placed on hold to afford the
applicants an opportunity to apply for
positions in the new
structure. They still steadfastly refused to apply. I am therefore
not persuaded that the applicants have
been faced with a
fait
a complit.
In
fact, it appears from the evidence that,
had
they applied for positions, they would, in all probability have been
appointed to the positions particularly if regard is
had to the fact
that one employee (who originally was part of the group) was in fact
appointed notwithstanding the fact that
she also initially formed
part of the group who refused to participate in the assessment
exercise.
The applicants tried to
persuade this Court that there was no necessity for the new
structure and that they effectively have been
doing the additional
tasks envisaged by the new business structure. I have already
pointed out why I reject this evidence. Moreover,
no reliance could
be placed on the evidence of Matji who, as already indicated, was an
obstructive and evasive witness. I therefore
accept the evidence
that Kaya had an operational rationale to introduce the new business
model. I also accept the evidence that
the applicants have in fact
accepted the new business model. The applicants have also been
consulted on the proposed model and
that they have accepted the
economic rationale and the proposal contained in the business model.
It is further accepted that
only once the model has been accepted
and the job descriptions have been finalised, did Kaya contemplate
retrenchment. Matji
also accepted in his evidence that they have
accepted the need for the new business model in order for Kaya to
become more competitive
in the radio advertising market and to
improve its revenue in this regard. His evidence in this regard
contradicts his other
evidence that the new Media Marketing Sales
Consultant was merely a change in title and that there was hardly
any difference
between what he had been doing and what was required
of the new Media Marketing Sales Consultant in the new business
model. Moreover,
the minutes of the two meetings, that were not
disputed, record that the applicants have accepted the new business
model without
any changes.
Kaya furthermore made
various attempts to reach consultation on appropriate measures to
avoid dismissals. The applicants were
invited to participate in a
profiling exercise to be conducted by an independent body to assess
their skills and aptitudes and
to compare these to the KPS’s
required for the new positions. The applicants refused to attend the
profiling exercise.
Despite them having refused to do so, Kaya still
kept the offer to apply for positions open. The applicants still
refused to
apply. I am further also persuaded that the applicants
were fully aware that the contents of the jobs differ under the new
business
model. I am further persuaded that the station had a sound
financial rationale to implement the new business model that aims to
adopt the new digital environment. I should also point out that I do
not accept the applicants’ evidence that they were
already
doing the tasks envisaged by the new business model. If that had
been so, they would have applied for the new positions
they have
steadfastly refused to do. The applicants’ recalcitrant
attitude gave the station the right to take a decision
to retrench:
The applicants clearly did not want to participate in the process.
In fact the impression gained from the evidence
is that the
applicants tried to delay the process as long as they can.
3
I am of the view that in
light of the fact that the applicants have accepted the new business
model and in light of the fact that
the applicants have steadfastly
refused to avail themselves of the opportunity to apply for other
positions, Kaya had a valid
and economic rationale to dismiss and
that it had exhausted the options to avoid dismissing the
applicants.
In respect of
Tshabalala, I have already pointed out that he had elected not to
give evidence and inform the Court why he rejected
the offer of
employment. It is trite that a failure to give evidence in
circumstances where the witness is available naturally
leads to the
inference that he fears that such evidence will be unfavourable to
him especially where evidence is available and
would elucidate
facts.
4
Why Tshabalala is not
before Court is therefore not explained. He was offered a position
in the new structure. Why did he refuse
the position and why should
he now be allowed to challenge his dismissal? His claim is therefore
dismissed on these grounds.
Accordingly, I am of the
view that there was a fair reason to dismiss and in the event the
dismissal was substantially fair.
Was the dismissal
procedurally unfair?
I am satisfied having
regard to all the facts that the dismissals of the applicants were
procedurally fair. An aspect that stands
out from the evidence is
the fact that the applicants have refused to properly participate in
this section 189(3) consultation
processes.
Section 189(2) of the
LRA imposes a correlative duty on both the consulting parties to
engage in the 189 process. The process
is not one sided. The
impression gained from the evidence is that the applicants sought
unreasonably to delay the
bona
fide
redeployment
or placement process and thereafter the retrenchment process.
5
I am persuaded in light
of the evidence that at the time Kaya took the decision to retrench
the applicants Kaya had tried for
months to persuade the applicants
to apply for positions in the new structure. They steadfastly
refused to do so. They have only
themselves to blame for the fact
that they were dismissed.
I have considered the
fairness of the procedure that was followed. Fairness extends to
both parties.
6
I am persuaded that Kaya
has attempted to follow a fair procedure but that its attempts were
frustrated by the steadfast refusal
of the applicants to participate
in the process. Their lack of co-operation in my view cannot be
blamed on Kaya. In the event,
I
am of the view that the dismissal was procedurally fair.
Costs
In respect of costs, I
have considered the circumstances leading to the dismissal of the
applicants and their conduct throughout
the retrenchment process. I
am satisfied that this is a case in which fairness dictates that
costs should follow the result.
In the event, the
applicants’ claim is dismissed with costs.
__________________
AC Basson J.
Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANTS:
Advocate B Matlejoane
Instructed by DMS
Attorneys
FOR THE RESPONDENT:
Advocate E Myhill
Instructed by Crawford
Attorneys
1
Act
66 of 1995.
2
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Unino
(1999)
20
ILJ
89 (LAC) at para 29.
3
See
in this regard:
Chester Wholesale Meats (Pty) Ltd v NIWUSA and
Others
(2006) 27
ILJ
915 (LAC) and
NUM & Others v
Crown Mines l.td (
2001) 10 LAC 5.2.22
at paragraph [40].
4
Elgin
Fireclays Ltd v Webb
1947 (4) SA 744
(A) at 749.
5
See
in this regard:
Chemical Workers Industrial Union of SA v Lennon
Ltd
(1994) 15
ILJ
1037 (LAC) and
NEHAWU v University
of Fort Hare
[1997] 8 BLLR 1054
(LC).
6
See
FAWU & Others v SA Breweries
[2004] 11 BLLR 1093
(LC):
‘
[48]I pause to mention that in
considering issues of fairness, the court is obliged to have regard
to fairness to both parties.
There is no room for any suggestion
(and Mr Kahanovitz for the applicants did not argue this) that
fairness is confined to its
effect on employees only (
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd & others
[1996] ZASCA 69
;
1996 (4) SA 577
(A) at 589C–D
;
Woolworths (Pty) Ltd v Whitehead
2000
(3) SA 529
(LAC) at 559F
; National
Education Health & Allied Workers Union v University of Cape
Town & others
(2003) 24 ILJ 95
(CC) at 112C–E).’