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[2013] ZALCJHB 128
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GIWUSA obo Qenebe and Others v NAMPAK Wiegand Glass (Pty) Ltd (JS398/10) [2013] ZALCJHB 128 (3 June 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS398/10
In the matter between
GIWUSA obo QENEBE, C
AND FIVE OTHERS
...............................................
Applicant
and
NAMPAK WIEGAND GLASS
(PTY) LTD
.....................................................
Respondent
Heard: 25 to 27
February 2013
Delivered: 03 June
2013
Summary: Dismissal on
the basis of operational requirements. Dismissal substantively fair.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
AC BASSON, J
[1] The applicant in this
matter is GIWUSA (hereinafter referred to as “GIWUSA” or
“the union”) a registered
trade union acting on behalf of
the individual applicants (Mr Cornelius Mosuoe; Mr Joseph Masilo, Mr
Henry Nkosi, Mr Pule Mogorosi
and Mr George Sebiloane). The
respondent is Nampak Wiegand Glass (Pty) Ltd.
[2] The matter before
this Court concerned the fairness of a large scale retrenchment. On
21 August 2009, the respondent issued
a notice in terms of section
189A and 189(3) of the Labour Relations Act
1
(“the LRA”).
In terms of the said notice, it is stated that the respondent is
considering a restructuring with the potential
for large scale
retrenchments as a consequence of the need to restructure its
operations and improve efficient levels. The notice
further explains
that certain roles will no longer be necessary to retain as a result
of the re-organisation of certain roles.
I will return to the
relevant facts herein below in more detail.
Legislative framework
[3] In deciding the
fairness of a retrenchment in terms of section 189(A) of the LRA (a
large scale retrenchment), this Court isguided
by the provisions of
section 189(A)(19) of the LRA which reads as follows:
‘
In any
dispute referred to the Labour Court in terms of section
191(5)(b)(ii) that concerns the dismissal of the number of employees
specified in subsection (1), the Labour Court must find that the
employee was dismissed for a fair reason if –
(a) the dismissal was to give effect
to a requirement based on the employer’s economic,
technological, structural or similar
needs;
(b) the dismissal was operationally
justifiable on rational grounds;
(c) there was a proper consideration
of alternatives; and
(d) selection criteria were fair and
objective.’
Issue before the Court
At the outset, it should
be pointed out that Mr Cartwright,on behalf of the
applicants,conceded that the introduction of the mini-labs
satisfiedthe first requirement namely that the dismissal was to give
effect to requirements based on the employer’s economic,
technological, structural or similar means. The first requirement
for a fair dismissal was therefore, no longer at issue. For
purposes
of deciding this matter it is therefore accepted that the dismissal
was operationally justifiable on rational grounds.
A similar
concession was also made in respect of the second requirement
namely, that the dismissal was operationally justifiable
on rational
grounds.
The only issue remaining
before this Court was whether there was a proper consideration of
alternatives. The procedural fairness
was not in issue before this
Court.
Relevant facts
As already pointed out,
this matter concerns six individual applicants. Five of the six
applicants fall within one category. The
sixth applicant, Mr
Sebiloane, falls into a separate category. The five applicants’
positions were directly affected by
the introduction of minilabs.
The introduction of the minilabs rendered their positions
redundant.Sebiloane worked in Raw Materials.
The Raw Material
section closed down and Sebiloane and two others were retrenched.
All applicants were grade 11 employees. For
convenience sake I will
deal with the two categories separately.
Because the economic
rationale of the dismissal was conceded, I will suffice with a very
brief summary of the operational reasons
for the dismissal: After
the notice was issued,the first facilitation meeting was held on 17
September 2009. During the meeting,
the respondentexplained the
reasons for the retrenchment. The respondent commenced in 2006 and
2007 to introduce so-called mini-labs
which are pieces of equipment
designed to detect defects in the glass products being manufactured.
It constitutes an automated
process replacing the need for a
physical inspection of the products during manufacturing. The effect
was to enhance efficiency
but had the potential to render certain
tasks redundant as they could become a duplication. A further five
facilitation meetings
were held under the auspices of the CCMA. As a
result of the introduction of the mini-labs, the Quality Assurance
Department
became redundant.
This brings me to the
heart of the dispute namely, whether there was a proper
consideration of alternatives. It was common cause
that there were
alternative positions available namely leer inspectors and batch
control operators.The parties were in dispute
as to whether these
positions were in fact offered as alternatives.
In brief, it was the
respondent’s case that alternative positions were offered
provided that the employees would accept
the packages attached to
the alternative positions. The leer inspectorsand the batch control
operator positions were all on grade
12. Of the 20 identified
positions, 12 jobs were saved. These employees were all employed as
batch control operators or leer
inspectors. According to the
respondent, the applicants were not prepared to accept the
alternative positions unless they were
remunerated at the same
level.
It was the applicants’
position that the positions were never offered to them and that if
they had been offered had they
would have accepted them.
As already pointed out,
the only issue before this Court was whether the alternative (grade
12) positions were offered to the
applicants. Grade 11 positions are
higher than grade 12 positions.
What does the evidence
show? A meeting took place on 26 October 2009. During this meeting,
the alternative positions were offered.
The applicants’
first witness Mr Andile Nyembezi was also the deponent to a founding
affidavit in an application prohibiting
the respondent from
retrenching the applicants pending the completion of the
retrenchment consultations. He testified that no
offer was made to
them. In cross examination, it was, however, put to him that he
admitted, in the replying affidavit in the
aforementioned
application, that an offer was made to them but that the offer was
made for a position on a lower grade and that
if that position was
accepted, the employee would then earn the rate of pay applicable to
such lower grade job in order to avoid
an unfair income
differential. He also admitted that GIWUSA did not accept the
proposal. Nyembezi’s only response was that
“he saw”
that. Nyembezi admitted that he was aware of the alternative
positions. If Nyembezi’s version is accepted
namely that the
respondent did not make any proposals, the question then arises
whether he as the representative of the individual
applicants did
not in light of his own evidence that he was aware of the
alternative positions make any counter proposal regarding
the
alternative available positions?
Mr Khumalo for the
respondent testified that the offer was made namely that the
applicants accept the alternative positions but
at a lower salary
(commensurate with a grade 11 position) but that the union refused.
The parties then deadlocked.
Can it then be said
against this background of the evidence that there was not a proper
consideration of alternatives as required
in terms of section
189(A)(19)(c) of the LRA? Firstly, I am satisfied that the offer was
indeed made and I am satisfied that
GIWUSA rejected the offer.
Although Nyembezi tried in his evidence to persuade me that the
offer was not made, he admitted his
own affidavit before this Court
not only that the offer was made in the terms set out above, but
that GIWUSA refused the offer.
The union was only prepared to accept
the alternative if the salaries remained the same. In this regard, I
am in agreement with
Mr van As that there is no obligation upon an
employer to bump an employee into a lower grade position and
thereafter to continue
to pay him the upper grade salary. I am
further in agreement with Mr van As that to pay employees different
salaries for doing
the same work isa recipe for disaster.
I am therefore satisfied
having regard to the evidence that anoffer in respect of alternative
positions wasmade to the applicants
and that the union rejected the
offer. Even if the Court accepts the applicant’s version,
namely, that no offer was made,
why did the union not take it upon
themselves to put forward a proposal regarding the alternative
positions. Nyembezi testified
that he knew about the alternative
positions so what stopped him from putting a proposal on the table?
The consultation process
during a retrenchment process is not a one
sided process. It is also incumbent on a union to submit proposals
during the consultation
process: A union cannot simply sit back and
wait for the employer to make all the proposals: See in this regard:
Bank of
Lisbon International v Pinheiro;
2
Greyvenstein v
Flaming Silver Trading 62 (Pty) Ltd t/a Sunglass World
3
and
SASBO v
Standard Bank
.
4
Moreover, if the union
moved from their position, it was incumbent upon the union to inform
the respondent that it had moved from
its position. There is no
evidence before this Court that the unionhad ever made a counter
proposal. I am therefore satisfied
that there was a proper
consideration of alternatives before they were declared redundant.
Furthermore, the evidence shows that
other employees whose positions
were also made redundant were in fact placed in alternative
positions. Those employees who were
prepared to accept a transfer
were placed in the positions that had been made redundant as a
result of the vacancies created
by those employees who had accepted
the voluntary retrenchment option. I am therefore satisfied that
these five employees were
fairly retrenched as they were not
prepared to be bumped into lower positions.
As far as Mr Sebiloane
is concerned, I am equally satisfied that he was fairly retrenched.
His evidence was that the vacant position
that is reflected on the
organogram was in fact his position. In other words, what he seems
to be saying is that he should not
have been retrenched in the first
place because his position had not been made redundant. This version
is simply absurd. Firstly,
this version was never put to Khumalo.
Secondly, this version was not pleaded and lastly, this version does
not form part of
the pre-trial practice directive. I am in agreement
with Mr van As that if this was the case for Sebiloane surely this
would
have formed part of the pleadings.
I am in light of the
evidence, satisfied that it was as a result of the intransigent
stance of the union that the five individual
employees were
retrenched. Had they agreed to the alternative positions albeit at a
lower salary, they would not have been retrenched.I
have already
referred to the fact that those employees who were prepared to
accept vacant positions at the level where the vacant
positions
arose were accommodated.
As far as the fourth
requirement is concerned (selection criteria), the evidence was that
the department in which the five employees
workedwas closed down. In
respect of Sebiloane,the fact that he was, according to Mr
Cartwright confused, cannot be accepted
as an excuse. Furthermore,
there is also no evidence that Sebiloane had applied for any
position.
I am therefore satisfied
that the dismissal was substantively fair. Because it was a section
189(A) dismissal. Theprocedural fairness
of the dismissal was not at
issue.
In respect of costs, I
have taken note of the submission that costs should follow the
result in light of the conclusion that the
union is in the end to
blame for the fact that the employees (at least the five
individuals) were retrenched. I have nonetheless
decided not to
award costs against GIWUSA in light of the on-going relationship
between the parties.
In the event the
following order is made:
The dismissal of the
individual applicants on the basis of operational requirements
was substantively fair.
There is no order as
to costs.
__________
A C Basson, J
Judge of the Labour Court
of South Africa
APPEARANCES:
For the Applicant: Mr
Cartwright of David Cartwright Attorneys
For the Respondent:
Advocate Van As
Instructed by: Cliffe
Dekker Hofmeyer Inc
1
Act
66 of 1995.
2
(1998)
19
ILJ
549 (LAC)1998 ILJ at para 42: ‘[41] The
Industrial Court, however, correctly took the respondent to task for
not raising
alternatives to retrenchment at any meetings. The
respondent deliberately ignored the appellant's written calls for
suggestions
for alternatives to retrenchment. He testified that at
the meeting of 17 May he was not 'open for consultation’
because
he 'knew beforehand that there were no positions in the bank
for [him] because the door was closed on 25 April'. While not
raising
alternatives to retrenchment - and he testified that he had
one in mind - the respondent and Mrs Goodman were careful to reserve
his right to challenge the retrenchment if no settlement was
reached. The respondent did not deal with the appellant in good
faith.’
3
[2007]
28 ILJ 1081(LC) at paras 41-44: ‘[41] Consultation is a
consensus-seeking process entailing a dual participatory
role. Once
the respondent had issued the formal offer of alternative
employment, it remained open to the applicant to play her
part by
identifying issues of concern and to take the respondent up on its
offer for further deliberations. No evidence of the
applicant having
done this was produced. In court, when the issue of the applicant
having to serve probation was pointed out
to Mr Smith, he said that
a standard type of offer of employment was used for the applicant
and that he was always willing to
discuss any issues raised therein.
That evidence was in agreement with his attitude in the consultative
meeting of 6 October
2004. He was never shown to have been lying in
that regard. I am, accordingly, bound to accept his version, namely
that he was
open to a discussion of any of the terms and conditions
of employment of the applicant. In my view, the blame for the
absence
of such a further and an important discussion lies at the
door of the applicant.
[42]
The respondent approached the consultative process with a
predisposition towards placing the applicant at the Clearwater
store. That was a method of solving the problem of having to dismiss
the applicant. The respondent was entitled to adopt such
an approach
- see the decision in
NEHAWU
andOthers v University of Pretoria
(2006)
27 ILJ 117 (LAC)
;
[2006]
5 BLLR 437
(LAC) at para 55.
[43] Mr Theron who
represented the applicant in the consultations of 6 October 2004,
took the respondent through various options
other than to take the
applicant to Clearwater. The respondent proffered an explanation as
appears on the record, why each option
was not appropriate for the
company. In my view, the respondent was accordingly open to change
its mind as persuasive argument
was presented to it that the
proposed method was wrong or was not the best. When it was suggested
that there was another alternative
of addressing the problem, such
as moving the applicant to Clearwater without a demotion or to move
her to Pretoria or Sandton
or Eastgate, the respondent did not just
dismiss those alternatives out of hand but considered the long-term
business implications
against the interests of the applicant.
[44] I conclude
therefore that, all the evidence considered, the dismissal of the
applicant was in my view procedurally fair.’
4
[2011]
32 ILJ 1236 at para 25.