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[2013] ZALCJHB 4
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Makalima v Edu-Loan (Pty) Ltd (JS 176/09) [2013] ZALCJHB 4 (21 January 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
case
no: JS 176/09
In the matter between:
SAKHEKILE VEZI
MAKALIMA
.................................................................................
Applicant
and
EDU-LOAN (PTY) LTD
..........................................................................................
Respondent
Heard: 2 and 3 June
2011
Delivered:
21
January 2013
Summary: Dismissal on
the basis of operational requirements.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
AC BASSON J
[1] The applicant (Mr
Sakhekile Vezi Makalima) claims that his dismissal on the basis of
operational requirements was substantively
and procedurally unfair.
The respondent (Edu-Loan (Pty) Ltd) submits that the dismissal was
substantively and procedurally fair
on the basis of operational
requirements.
The
respondent Edu-Loan (Pty) Ltd operates nationally and is in the
business of providing study loans to students. It is based in
Cape
Town,
Port
Elizabeth, Polokwane and Johannesburg.
[2] The facts which gave
rise to the dismissal of the applicant are somewhat unique in the
sense that an extensive consultation
process in respect of a new
structure for the respondent preceded and was completed prior to the
issuing of a further notice to
the applicant informing him of the
fact that the respondent contemplated a dismissal on the basis of
operational requirements.
At the time that the respondent commenced
with extensive consultations on a new structure, it was not
contemplated that the applicant
faced a possible retrenchment
although the respondent issued a section 189(2(a)(i) notice to all
employees before the consultations
in respect of the new structure
commenced. This notice indicated that retrenchment may follow from
this process although it was
not envisaged at that stage. However,
once it became clear that the applicant’s position (and in fact
his whole department)
became redundant as a result of the
implementation of the new structure, the respondent had one
consultation meeting in terms of
section 189(3) of the Labour
Relations Act
1
(‘the LRA’).
This consultation meeting was preceded by a (further) section 189(3)
notice. Although it is in dispute
exactly how exhaustive this meeting
was, it was common cause that such a consultation meeting was held.
The applicant was dismissed
shortly thereafter.
[3] The respondent
submitted that the dismissal in the present case was fair and that
the respondent was entitled to follow a consultation
process in
circumstances where it had not yet contemplated that there would be a
dismissal for purposes of restructuring the business.
It further
contended that an employer was entitled to proceed with a
retrenchment process once it appears that it is not able to
absorb
all of its employees in the new structure.
[4] The applicant
contended that,
at
the stage when the restructuring exercise led to the conclusion that
a retrenchment exercise would be embarked upon, the respondent
was
required to conduct the consultations afresh. The respondent
disagreed and contended that this would have meant that all employees
who have been placed in new positions alternatively have been used to
populate the new agreed structure,
would
then have to be made subject to a separate retrenchment exercise.
[5] Before I proceed to
the merits of the matter,
it
is necessary to restate the fact that a dismissal on the basis of
operational requirements is a no fault dismissal. Because it
is a no
fault dismissal and in order to ensure that an employee faced with
such a possibility is treated fairly, the legislature
has set out
fairly detailed procedures that must be followed prior to arriving at
a decision to dismiss on the basis of operational
requirements.
2
In following these
procedures it is not required that the employer follow a checklist
approach. What is required is that the employer
must genuinely
attempt to engage its employees and attempt to reach consensus on the
items listed in section 189(3) of the LRA.
3
[6] In this particular
case,
the
respondent commenced with consultations regarding a new
organisational structure approximately two months before the
applicant
was informed that he was one of the five employees who were
now facing possible retrenchment. The respondent urged this Court to
find that these preceding consultations in respect of the
restructuring process should be taken into consideration in arriving
at a decision that the retrenchment was fair despite the fact that
those consultations were aimed at introducing a new structure
in the
workplace and not strictly aimed at an actual retrenchment exercise
The applicant, however, insisted that there were no
proper
consultations regarding his retrenchment and persisted with the
submission that his dismissal was substantively unfair.
More in
particular,
he
insisted that proper consultations had to be conducted once he was
informed of his possible retrenchment. As already pointed
out, it was
common cause that although extensive consultations had taken place
over a period of about two months regarding the
proposed new
structure, only one consultation meeting took place after the
applicant was informed of the possibility of a retrenchment.
I will
now turn to the relevant facts in more detail.
Section 189(3) Notice
dated 2 September 2008
[7] On 2 September 2008
the respondent issued a section 189(2) notice entitled: ‘Notice
of contemplated Consultations’
to all employees of the
respondent. The employees were informed of the fact that a strategy
was developed with the assistance of
Strats Inc (an independent
consultancy firm) to develop a revised strategy for the respondent
with the aim of taking the company
to the next level. The notice
specifically states that ‘[w]e subsequently needs to adapt the
structure to implement this
strategy’. Employees were informed
as follows:
‘
Edu-loan
intends to engage you in consultations as stipulated above. This is
then the first Notice, being termed the section 189(2)
Notice.
Edu-loan intends to consult with you
on measures team easily avoid any possible dismissal due to
operational requirements “retrenchment”.
It is believed
that a constructive consultation station will certainly avoid
dismissals.
Should such measures not be able to be
utilized and or exploited then the remainder of section 189(2)(a)(ii)
onwards may be used
in this process. A further notice will be issued
therein.’
[8] The applicant was
informed that a consultation process will be held on a date to be
advised and that the applicant was entitled
to be assisted by an
employee, a trade union official or other recognised legal persons.
The applicant was further informed as
follows:
‘
In the event
of staff that has been / positions that have been identified not
being able to be absorbed in the new structure, then
further
consultations and notices will follow. It is however particularly
envisaged at this time that it appears more probable
that no
dismissals will follow, but that only structural changes will be
affected.’
[9] The notice further
informs the applicant that a retrenchment process will be followed
once it appears that an individual cannot
be absorbed into the new
structure:
‘
In the event
of staff that have been / positions that have been identified not
being able to be absorbed in the new structure, then
further
consultations and notices will follow. It is, however, particularly
envisaged at this time that it appears more probable
that no
dismissals will follow, but that only structural changes will be
effected.
Edu-Loan may also contemplate offering
voluntary retrenchment but same may only be considered at a later
stage.’
[10] During August 2008,
the respondent embarked on a consultation process for the sole
purpose of informing all employees of the
intended changes. The
consultation process was therefore not strictly conducted in the
context of a retrenchment exercise although
the applicant (and all
the other employees) was informed in the first section 189 Notice
that retrenchment may be an option should
any employee not be
absorbed in the new structure. As already pointed out, the
retrenchment followed much later. Moreover, the
retrenchment that
followed much later was not as a result of the respondent being in
financial dire straits but because of the
structural changes to the
company which resulted in the applicant’s redundancy. The
consultation process that started in
August/early September was in
the form of a road show all over the country and took approximately
two months. All employees were
consulted in respect of the new
proposed structure.
[11] The respondent
called one witness - the Human Resources Manager, Ms Gengadoo who
gave detailed evidence about the reason for
the restructuring and the
process that was followed during the road show and the process which
resulted in the retrenchment of
the applicant. She testified that she
oversaw the Human Resources Department and that she managed the HR
functions of the respondent.
She explained the business of the
respondent as being in essence a lending company (akin to a finance
company) that lends money
to students who wish to further their
studies. The respondent will lend the money to a student (usually to
the parent who applied
for the loan) and would pay, for example, a
university for whatever degree the person wants to study for. The
loan would then be
deducted from the salary of the person who had
applied for the loan. At the time of the retrenchment, the respondent
employed approximately
110 to 120 employees nationally in the major
regional centres of South Africa.
[12] During 2007, the
respondent saw a tremendous growth of approximately 21% in the value
of loans. The respondent then called
in the help of a company called
Strats Inc to assist the respondent to investigate the company, the
markets and the respondent's
competitors to determine what kind of
business was available. The Board of Directors of the respondent, at
that stage, envisaged
a growth in the amount of R1 billion in the
revenue of the respondent.
[13] The internal process
followed in this consultation process entailed interviews with all
members of staff right from the Chief
Executive Officer down to the
tea lady. Gengadoo testified that the road show was an information
session and it was also regarded
as a consultation process because it
was interactive. Employees were able to ask questions about the
benefits that the respondent
offered.
[14] Gengadoo referred
the Court to a document entitled “
Strategic Assessment
Rejuvenating the Business
” and explained that this document
(in the format of a slideshow) was compiled with the input of Strats
Inc. She and other
General Managers had also perused the document
before it went out and gave their input where they felt it was
necessary. This document
was used during the road show during the
consultation process with the staff members. The document covers
various issues: It gives
an overview of the growth in the
respondent’s business. It also records that interviews were
held with all staff members
and the fact that it was established that
there was low staff morale and that as a result the respondent had
low productivity levels.
The investigation further revealed that the
majority of interviewees reiterated the need for a revised
organisational structure
that takes into consideration employees
‘abilities and competencies by placing them in positions where
they will be most
effective’. She testified that some employees
were of the view that the respondent needed to look at the
organisational structure
to ensure that each person is placed in the
right position so that the respondent would be able to meet its goals
and enhance (possible
word missing). Although some staff members
expressed dissatisfaction with some areas of the business of the
respondent, the common
feature for the future included the
requirement of a new direction; the requirement of a new
organisational structure and the creation
of a company that everyone
could believe in. The document further sets out the strategy and
business considerations necessary in
order to take the respondent to
the next level. According to this document, there were certain
internal business systems and platforms
that needed to be addressed
to coincide with the implementation of this strategy so that a
specific goal could be reached. These
business considerations
included marketing and the upgrading of the contact centre.
[15] The Department Human
Resources also conducted a survey throughout the company. This survey
revealed that there was a need for
on-the-job training.
[16] The presentation
importantly sets out the ‘current structure’ reflecting
the structural position of the applicant
as it was in August 2008 as
well as the revised (or proposed new) structure that amended the old
structure. The new structure was
put into place at the end of
September 2008. Gengadoo, however, explained in her evidence that
further amendments to the structure
were effected later on and was as
a result of further consultations. The new structure shows,
inter
alia
, that the Finance Department remained unaffected but that
the Marketing Department now had two tiers: the one is the Research
and
Development component and the other is the Product Development
component. The most radical change was in respect of Operations and
Sales in the old structure. This department was done away in the new
structure. The new structure now had a National Sales Department
and
Operations.
[17] At the time of his
dismissal, the applicant was employed as the Business Development
Officer for the section called ‘Corporate
Sales’ or
‘Corporate Structure’ (in the current structure before
the restructuring). His duties entailed looking
at corporates or
employers and helping with the processing of application forms for
clients that would sign up with him. Corporate
sales consisted of a
General Manager for Corporate Sales and applicant. Gengadoo testified
that the respondent’s division
disappeared completely after the
structural changes were effected and that his manager had been
appointed to another position in
another division. As a result of
these changes, the applicant’s position no longer existed and
no longer had that function
in the new structure as sales were not
done by the Sales Division in the new structure. It is further common
cause that the immediate
superior of the applicant was later deployed
as the General Manager: Business Networking in the new department and
the respondent
elected to have the fixed term contract of the
assistant in the old structure (Corporate Sales) run its ordinary
course and elected
not to renew such fixed term contract.
Section 189(3) Notice:
Notice of retrenchment Consultations
[18] Because the
applicant could not be absorbed into the new structure, he was
informed in a letter dated 7 November 2008 that
retrenchment
consultations would now commence. The applicant is informed that he
could not be absorbed into the new structure and
that retrenchment
consultations would now commence. The letter lists the various
consultation topics and informed the applicant
that the relevant
information on which the respondent had based its decision to
retrench will be disclosed. He was further informed
that
consultations will take place on 11 November at 9h00 in the board
room.
[19] Consultations did
take place at the offices of Gengadoo. She testified that she
discussed the fact that the structure Corporate
Sales no longer
existed. The minutes of the meeting confirms that this issue was
discussed with the applicant. The minutes further
points out that the
applicant had received all notifications regarding vacancies via
e-mail and that he chose not to apply for
the positions. The minutes
further confirm that five people in the respondent were affected by
the retrenchment process. The applicant
denied that proper
consultations were held with him but admitted that he did not apply
for positions in the new structure.
[20] Gengadoo testified
that various new positions became available during September. These
positions were financial positions in
the Finance Department and
required specific qualifications in order to qualify. An employee
was,
inter alia
, required to be able to do bookkeeping. A loan
administrative position (which is an administrative position) was
also available
in the Operations Division. A person in this division
had to assist with customers. There were also two supervisory
positions available.
Gengadoo testified that these positions were
made known to the staff and that the applicant knew about these
positions. She testified
that some people did in fact successfully
apply for positions and that they have therefore not been retrenched.
Gengadoo testified
that the applicant chose not to apply for any
positions. She, however, testified that the applicant participated in
the consultation
process. The issue of severance pay and payment for
outstanding leave was also discussed with the applicant. The
applicant testified
that the meeting lasted approximately 10 minutes.
Gengadoo denied that this was the case.
[21] Five employees in
the respondent were served with notices. Gengadoo insists that she
had a proper discussion with the applicant
on all the issues listed
in the notice. From 11 November until 17 November, the respondent
attempted to find some position for
the applicant. At that stage, it
was a possibility of a position at Tshwane University of Technology.
[22] Gengadoo was adamant
that there was proper consultation with the applicant and that
sufficient information (the road show documents)
were given to the
applicant. The applicant was also informed of alternative positions.
[23] It is common cause
that no further meetings were held. On 11 November 2008, the
applicant was informed that he was retrenched
because his position
had become redundant. A hand over was done on 18 November 2008. A
certain Mr Percival Lekgetho was allocated
to help with the hand
over.
[24] It is also common
cause that LIFO was not used as a selection criterion. In fact,
Gengadoo conceded that if LIFO was used there
was a good possibility
that someone else would have been dismissed and not the applicant.
She was, however, adamant that the applicant
could not be retrained.
Her evidence was that the respondent essentially looked at skills
when it populated the new structure.
As already pointed out, the
applicant did not apply for any positions in the new structure.
Gengadoo was cross-examined about the
respondent’s decision to
keep Percival and not the applicant. She explained to the Court that
Percival had the skills that
were required in the new structure
whereas the applicant did not.
[25] Gengadoo testified
that the applicant had been aware of the fact that his department no
longer existed and that he was aware
of this fact since August/
September 2008 when the road show was done. He therefore could not
have been under any misimpression.
The applicant was therefore aware
of the fact that his Department would be done away with in September
2008 which was two months
before his retrenchment date and that it
was already apparent at that stage that his Department was going to
fall away. She further
testified that the road show afforded people
with an opportunity to ask questions and query the structures.
[26] The applicant did
not dispute that there had been a need to restructure the respondent.
In fact, in his evidence in chief,
he stated that the restructuring
of the organisation meant that the organisation grew bigger. It
appears that he was of the view
that his position was secure
notwithstanding the fact that the organisational structure had
changed. The applicant also admitted
that the positions were
advertised shortly after the road show in August. However, he
testified that he did not apply for any position
because his position
was not affected and would not be affected by the restructuring. The
applicant conceded that the population
of the new positions had taken
place during September and October 2008. The new positions were then
advertised thereafter. The
applicant conceded that he was aware of
the positions and that some employees had applied for these
positions. He did not deny
that his department/ division fell away
but he insisted that his position did not fall away and that he had
assumed that he would
be moved into another position. The applicant,
to a direct question from this Court as to why he did not apply for
any positions
even after he saw the advertisements, saw other
employees apply for positions and saw even his manager being
appointed in another
position, gave an elaborate and non-sensical
answer. In short it was his evidence that he did not make an enquiry
about his position
and where he was going to be moved simply because
he assumed that his position was safe. The applicant also could not
answer why
he did not dispute in his evidence in chief the fact that
the termination letter informed him that a retrenchment process had
been
followed and that it was agreed that the result of the
restructuring was that the applicant’s position was redundant.
He
also could not answer to the Court why it was not denied that his
termination letter recorded an agreement in respect of severance
pay.
Brief exposition of
the law
[27] In essence, it was
the applicant’s contention that no valid economic rationale for
his dismissal existed. As will be
pointed out herein below, I am
persuaded on the evidence that such an economic rationale existed. I
am further satisfied that the
applicant was aware of the
restructuring process and that he in fact embraced the new structure.
It is clear from the evidence
that his whole department disappeared
and that even his manager (the only other person in the department)
was appointed in another
department.
[28] What appears to be
in issue is the applicant’s insistence that a proper
consultation process had not been followed. The
suggestion was that
the consultation process in respect of the restructuring cannot be
taken into account in deciding the fairness
of the consultation
process. As will be pointed out herein below, I do not agree. The
consultation process that preceded the restructuring
is relevant.
More in particular, that consultation process did take place against
the background of a possible retrenchment process.
[29] This present matter
bears striking similarities with the matter in
Mazista Tiles (Pty)
Ltd v National Union of Mineworkers and Others
.
4
In the
Mazista
matter, the Labour Appeal Court upheld the
fairness of a dismissal on the basis of operational requirements
where the employer
invoked the provisions of section 189 of the LRA
with the aim of changing the terms and conditions of employment which
intended
to lead to the termination of employment. In that matter the
consultations initially dealt with changes to terms and conditions
of
employment but took place in contemplation of retrenchment because
the company contemplated retrenchment as a possible solution
if the
workers rejected its proposals. The LAC pointed out that an employer
is entitled to make profits and is not precluded from
retrenching
employees if they reject changes to terms and conditions of
employment that will make the business more profitable
or
competitive. The union contended (similar to what the applicant is
contending in this matter) that the consultation process
was not a
consultation on redundant procedures but rather negotiations on the
change of the conditions of employment. In
Mazista,
the
employees were retrenched because they did not agree to the changes
to their conditions of employment. The workers and the
union were
given notice of the proposed restructuring and invited alternative
proposals and scheduled a consultation meeting with
the union.
[30]
Although there undoubtedly are differences between the
Mazista
case
and the present matter, in both cases consultations took place in
respect of changes in the workplace. In both cases the consultations
took place against the backdrop of a possible retrenchment. If regard
is had to the first notice in the present case, it is clear
that the
applicant was informed that, although retrenchment was not envisaged
at that stage, retrenchment was an option in the
event the applicant
could not be absorbed in the new structure. In other words, even at
that early stage the applicant was made
aware of the fact that, in
the event he is not absorbed iton the new structure, a further notice
in terms of section 189(3) would
be issued to him and a consultation
process (a retrenchment process) would be followed. It follows, in my
view therefore that the
consultation process that was conducted in
respect of the new structure forms part of the consultation process
that commenced after
the section 189(3) notice was issued. Put
differently, the applicant was informed before the consultation
process commenced that
should he not be accommodated in the new
structure he may face dismissal. Consultations therefore did take
place against the backdrop
of possible retrenchments and can,
therefore, in my view not be detached from the consultation process
that took place
after
the
section 189(3) notice was issued. Although the circumstances giving
rise to his dismissal in the present case are different
from those in
the
Mazista
matter,
5
the
conclusion reached by the LAC in
Mazista
is
relevant to the present matter. The LAC in
Mazista
concluded
that the consultation process, although not specifically about the
retrenchment of the employees, was considered to be
sufficient in
that it considered some of the issues relevant to the consultation
process in terms of section 189.
6
[31]
In the present matter the respondent (as was the case in
Mazista
)
also gave a notice to the applicant once it became clear that his
position was now at risk. The LAC in
Mazista
concluded
that the consultation which took place complied with the requirements
of section 189 and that the dismissal was procedurally
fair and that
the employees had been afforded an adequate opportunity to furnish
the employer with counter proposals.
7
[32] I
am satisfied that the applicant had been afforded an adequate
opportunity to furnish the respondent with counter proposals.
The
presentation that was given to the employees clearly sets out the new
structure and clearly sets out the fact that the applicant’s
department no longer existed in the new structure. He could,
therefore, not have been under any misimpression that he would
necessarily
have been retained in the new structure. A simple
comparison of the two structures makes it clear that his department
no longer
existed. The applicant therefore had sufficient information
regarding the structure. The evidence shows that
the
process that was embarked on was comprehensive. I am further of the
view that the information that was used during the initial
consultation process may be used in terms of a subsequent
retrenchment exercises. The uncontested evidence of Gengadoo was to
the effect that the contents of the Strats Inc document
8
encompassed financial
projections, turnover figures, assessments, training and a host of
other disciplines within the workplace
which could leave little doubt
that the particular process that was followed preceding the
compilation of the aforesaid road show
document was comprehensive,
meticulous and could leave employees with little doubt as to what the
true business position is. The
evidence further indicates that both
the applicant and the respondent debated alternatives and it
certainly appears
prima
facie
that
the applicant was given a fair opportunity to provide his input in
the circumstances and similarly the consultation was genuinely
aimed
at reaching consensus.
[33] I am further
persuaded that the respondent, once it reasonably foresaw that it was
not able to accommodate the applicant and
other employees, was
entitled to give effect to paragraph 4 of the section 189(2) notice
and proceed to issue the section 189(3)
notice. The notice which was
issued to the respondent,
in
my view,
complied
substantially with the provisions of the LRA at Section 189(3).
9
[34] I also do not accept
the evidence that the consulation process only took 10 minutes. If
regard is had to the handwritten notes
of Gengadoo on the
consultation meeting the probabilities favours the version of
Gnegadoo that the consultation on 11 November
2008 could not have
merely lasted 10 minutes as supported by the version of the
respondent.
[35] I can also find no
reason to reject Gengadoo’s evidence that the revised structure
was generally met with approval. The
respondent therefore had, in my
view, a fair economic rationale to implement the new structure. I am
further of the view that a
proper consultation process had been
followed prior to implementing the new structure that made the
applicant’s position
redundant. I am satisfied that the
respondent genuinely and in good faith proceeded to consult with
employees in an attempt to
populate a new structure that would have
given effect to the planned one billion rand turn over by populating
such employees into
a new structure. It is therefore clear that the
respondent was not hasty in its restructuring process and that a
period of two
months were used by the respondent to engage all
employees on all levels and all management spectrums to eventually
obtain the
buy in of all employees to achieve the new structure. It
is also common cause that the proposed structure was not the ultimate
structure that was concluded at the finalisation of the road show
sessions but that the structure was further adjusted based on
the
various meetings that were held with employees and as certain
employees were further slotted into additional positions.
Was
it fair to dismiss the applicant
?
[36] It is common cause
that the respondent position (and his department) disappeared. Once
the structure was populated, it transpired
that the applicant could
not be accommodated. His position effectively became redundant. The
applicant in particular was retrenched
after he had decided not to
apply for any alternative positions. His retrenchment therefore was
not unfair.
10
Although, it is accepted that an employee may not be obliged and/or
is not obliged to accept any alternative position, it will
be fair to
dismiss an employee for operational requirements if the refusal to
accept an alternative position is unreasonable. It
is clear from the
evidence that the respondent herein did not attempt to coerce the
applicant to accept an alternative position.
However, the applicant
willingly did not make use of the opportunity to be considered for an
alternative position.
11
[37] In the event, the
applicant’s dismissal on the basis of operational requirements
was substantively and procedurally fair.
In respect of costs, I have
decided in the interests of fairness not to award costs against the
applicant.
Special cost order
[38] The applicant did
not file a practice note. The respondent has, however, filed the
practice note. It was submitted on behalf
of the respondent that the
Practice Directive calls upon a party, in this case the applicant, to
file a practice note before 09h30
at least three Court days prior to
a matter being heard on the trial roll as in this case.
12
The applicant who at all material times, had been represented by
attorneys had failed to file such a practice note and that the
practice note on the Court file was indeed prepared by Counsel for
the respondent in terms of paragraph 9.2 of the aforesaid directive.
The respondent therefore submitted that the Court must grant a
special cost order to the respondent for the preparation of the
Practice Directive and for complying with the aforesaid requirements
of this Honourable Court.
[39] I am in agreement
that the attorney on behalf of the applicant should pay the
respondent’s costs in preparing the Practice
Directive
de
bonis propriis.
[40] In the event, the
following order is made:
The dismissal of the
applicant was substantively and procedurally fair.
No order as to costs in
respect of the trail proceedings.
The applicant’s
attorneys to pay the respondent’s costs in preparing the
Practice Directive
de bonis propriis.
____________________
AC BASSON, J
Judge of the Labour Court
APPEARANCES
For the applicant: Mr T.
Faku
Instructed by: Qhojeng
Attorneys
For the Respondent:
Advocate F Venter
Instructed by: Grimbeek –
Van Gaalen Attorneys
1
Act
66 of 1995.
2
See
section 189
of the
Labour Relations Act, 66 of 1995
.
3
Johnson
and Johnson (Pty) Ltd v CWIU
(1998) 12 BLLR 1209
(LAC) at paras
26-31,
Alpha Plant and Services (Pty) Ltd v Simmonds and Others
(2001) 3 BLLR 261
(LAC) at paras 9-11
, Wheeler v Pretoria
Propshaft Centre CC
(1999) 20 ILJ 2982 (LC) at paras 17-21.
4
(2004)
25
ILJ
2156
(LAC).
5
In
the
Mazista
matter the respondent initiate the consultation
process in order to bring about changes in conditions of service and
in the present
matter the respondent initiated the consultation
process in order to introduce a new structure) the fact that there
were consultations
about the rationale for implementing a new
structure.
6
In
this regard the Court held as follows: ‘[64] However, the
court a quo decided the matter on the basis that the appellant
had
failed to indicate to the respondent that it wanted to discuss
retrenchment as required by
s 189.
While it may be true that the
appellant did not expressly state that the consultations were held
in terms of
s 189
, it was, nonetheless, clear from the agenda of the
issues to be considered at some of the consultation meetings that
the parties
were required to consider issues relevant to a
consultation process in terms of the section.
Even if the
respondents had initially laboured under the impression that the
purpose of the consultation was to seek the employees'
consent to
the proposed changes to terms and conditions of service, such a
misunderstanding must have been cleared by the terms
and the
language employed in some of the notices they received from the
appellant.
’ (Court’s emphasis.)
7
Id
‘[70] For the above reasons I am unable to agree that the
consultation which took place between the parties did not comply
with the requirements of
s 189
and that the dismissal was
procedurally unfair. In my view, the respondents were given an
adequate opportunity to furnish
the
appellant with whatever counter-proposals they had in order to avoid
being retrenched and they had failed to do so. Instead,
they claim
that they perceived the entire process to have amounted to
negotiations for the proposed changes to terms and conditions
of
employment. According to them the appellant should have commenced a
fresh process of consultation when the employees rejected
its
proposal even though they had no counter-proposals to make. In view
of the notice issued by the appellant on 13 July setting
out the
agenda of the meeting of 19 July, it is inconceivable that the
respondents could still argue that the consultation was
about
changing the terms and conditions of service.
[71]
In the light of all the above conclude that the dismissal was fair
both substantively and procedurally fair.’
8
Bundle
B: p 18 – 59.
9
‘
(3)
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 effected in 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 dismissals are likely to take effect;
the servants pay
proposed;
any assistance that the
employer proposes to offer the employees likely to be dismissed;
the possibility of
future re-employment of the employees who are dismissed;
the number of employees
employed by the employer; and
the
number of employees that the employer has dismissed for reasons
based on its operational requirements in the preceded 12 months.’
10
NETU
and Another v Henred Fruehauf Trailers (Pty) Ltd
(2001) 7 BLLR
804
(LC).
11
See
in general:
Sayles v Tartan Steel CC
(1999) 20
ILJ
647
(LC).
12
Consolidated
Practice Directive 2010, para 9.1.