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[2014] ZALCJHB 37
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Ngwenya and Others v Adminicle Trading 17 CC (JS1229/2009) [2014] ZALCJHB 37 (11 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 1229/2009
In the matter between:
DERRICK NGWENYA AND 13
OTHERS Applicant
and
ADMINICLE
TRADING 17
CC
Respondent
Heard:
3 February 2014
Delivered:
11 February 2014
Summary:
Unfair dismissal in terms of the provisions of section 189 of the
Labour Relations Act. No procedure
followed prior to retrenchment.
Dismissal unfair.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The
Applicants approached this Court for relief as they claim that their
dismissal was automatically unfair, alternatively their
dismissal for
operational reasons was substantively and procedurally unfair.
[2]
The
Respondent opposed the matter.
[3]
The
matter was enrolled for trial on 3 February 2014 and prior to the
commencement of the trial, the Respondent sought a postponement.
[4]
Before
turning to the merits of the case, it is necessary to deal with the
postponement application.
The application for postponement
[5]
The
Respondent sought a postponement and advanced only one reason for the
postponement, namely that it made an offer to settle the
matter on 21
May 2013 and was still awaiting a response from the Applicants’
attorneys, who acknowledged receipt on 23 May
2013 and gave an
undertaking to revert to the Respondent, but failed to do so. Ms
Pather for the Respondent submitted that because
the Respondent did
not know what the status of the settlement was, it was unable to
prepare for trial and did not make any discovery
of documents.
[6]
The
notice of set down of the trial date of 3 February 2014 was sent to
the parties on 10 October 2013.
[7]
Ms
Pather submitted that the Respondent would be severely prejudiced if
the matter is not postponed as it is not ready for trial
and this
prejudice outweighs the prejudice to be suffered by the Applicants.
The matter has been frustrated since 2010 and another
postponement
would not prejudice the Applicants. The Respondent tendered the
wasted costs associated with the postponement.
[8]
Ms
Pather confirmed that after 21 May 2013 no further letter was written
to the Applicants’ attorneys to enquire about the
possibility
of a settlement, no steps were taken after the notice of set down was
received in October 2013 to pursue and finalise
the settlement, no
formal application for postponement was made and the Applicants’
attorneys was never contacted to discuss
the possibility of
postponement prior to the trial.
[9]
The
only letter written to the Applicants’ attorneys was dated 28
January 2014, and was written in response to the Applicants’
attorney’s letter of 23 January 2014. In the letter of 28
January 2014 the Respondent’s attorneys stated that they
were
awaiting the Applicants acceptance or rejection of the ‘with
prejudice’ offer made in May 2013. No mention was
made in this
letter of the fact that the Respondent would be seeking a
postponement. A letter was subsequently and on 31 January
2014
addressed to the Judge President of this Court in respect of a
postponement. I have to say that it is unusual to approach
the Judge
President for a postponement the Friday before the Monday the matter
is to go on trial, especially where no effort was
made to approach
the Applicants’ attorneys for a postponement.
[10]
Be
that as it may, the Respondent’s attorney was not at Court, nor
was any person from the Respondent present. The Respondent
displayed
an attitude that a postponement would be granted merely because it
was asked for.
[11]
Ms
Pather had a difficult and unenviable task to convince the Court that
the Respondent should be granted the indulgence of a postponement
if
the only reason for postponement was that the Respondent did simply
nothing to prepare for trial and was not ready to proceed.
[12]
Mr
Baloyi for the Applicants opposed the application for postponement.
He argued that the Applicants were dismissed in 2008 and
this case
was referred to Court in 2009 and that the Respondent has used all
methods possible to frustrate the matter.
[13]
Mr
Baloyi gave a brief background of the matter and emphasized that the
Respondent has frustrated this matter from the onset. He
submitted
that at conciliation on 11 April 2008 the Respondent raised a point
in
limine
that
the CCMA had no jurisdiction to conciliate a dispute regarding
retrenchment. The CCMA commissioner issued a ruling that the
CCMA has
jurisdiction to conciliate the dispute and issued a certificate of
outcome. The Respondent subsequently took the ruling
on review and
brought an urgent application interdicting the Applicants from
enrolling this matter, pending the outcome of the
review application,
which order was granted on 5 March 2010. On 14 May 2010 the
Respondent withdrew the review and urgent applications.
[14]
On 30
March 2011 this Court granted a default judgment in favour of the
Applicants. The Respondent filed a rescission application
and on 21
April 2011 the default order was rescinded. On 17 May 2011 the
Applicants filed a notice of intention to amend and after
the
Respondent filed no objection, the amendments were effected. Only
after the expiry of the
dies
the
Respondent filed an objection to the amendment. This resulted in
another application to this Court seeking condonation for the
late
filing of the objection. The Respondent filed a plea to the amended
statement of case in June 2011, where after Mr Baloyi
attempted to
finalise the pre-trial minute. After numerous unsuccessful attempts,
the Applicants enrolled the matter for a pre-trial
before a judge and
on 6 June 2012 the pre-trail minute was filed. Mr Baloyi argued that
the Respondent did everything it could
to frustrate the Applicants’
case and this application for a postponement was simply a
continuation of the same conduct.
[15]
Mr
Baloyi conceded that there was an attempt to settle the matter, but
it was not settled. On 23 January 2014 he addressed a letter
to the
Respondent’s attorneys and requested the discovery of the
Respondent’s documents, as per the pre-trial minute.
Another
letter was sent on 31 January 2014 stating that no bundle of
documents was made available and that there is no settlement
wherefore the matter should proceed to trial. The Respondent’s
attorneys seeking a postponement never approached him and
the first
time the issue of postponement was raised with him, was at Court when
the trial was to commence.
[16]
Mr
Baloyi argued that the matter had been dragging on for a long time.
The Applicants are laypersons who are unemployed and who
had to come
to Court every time the Respondent filed an application of some sort.
He argued that a cost order would not remedy
the situation as the
Applicants are severely prejudiced by the long delay and the matter
should proceed.
[17]
After
I considered the merits of the application for postponement and the
submissions of the Applicants, I found that the application
was
without merit and that it would not be in the interest of justice to
postpone the matter. The Applicants were dismissed six
years ago and
the matter had been dragging on since 2009.
[18]
Justice
delayed is justice denied and I refused the application for
postponement and ordered that the matter proceed on the merits.
At
this point Ms Pather formally withdrew from the matter as she was
only briefed to argue the application for postponement and
not for
trial.
Issues the Court is required to
determine
[19
]
In
the pre-trail minute the parties agreed that the Court is to
determine whether the Applicants’ dismissals were automatically
unfair, alternatively whether their dismissals were substantively and
procedurally fair, and what relief they would be entitled
to.
The pleadings and pre-trial
minute
[20]
The
Applicants’ case is that they were unfairly dismissed after
they joined a trade union and the Respondent wanted to avoid
dealing
with a trade union in the workplace and there was no real reason to
retrench the Applicants. In this respect the Applicants’
claim
is that they were automatically unfairly dismissed.
[21]
In
the alternative the Applicants’ claim is that their dismissal
based operational requirements was substantively and procedurally
fair in that they were not consulted on the material aspects
prescribed by section 189 of the Labour Relations Act (the Act) and
the Respondent did not disclose the reason for the dismissal.
In this respect the Applicants’ claim is that they were
substantively and procedurally unfairly dismissed.
[22]
In
the pre-trial minute it was agreed as common cause between the
parties that the Respondent formerly employed Applicants as packers,
driver, machine operators and production managers. On 15 February
2008 the Respondent distributed a letter amongst the 14 individual
Applicants titled ‘Notice of Retrenchment in terms of section
213 of the Labour Relations Act’. According to the letter
the
effective date of termination was 29 February 2008 and the Applicants
were relieved of their duties as from 15 February 2008.
The evidence adduced
[23]
Mr
Mabowe Edmond Phakoago testified that the Respondent employed him as
a production manager. On 31 January 2008 the workers
found out
that their annual salary increase was only 10% and much different
from the salary increase of 15% they received in 2007.
The workers
were dissatisfied and they elected representatives to speak to Mr
Makwela, the owner of the business and they requested
a meeting with
Mr Makwela.
[24]
The
meeting the employees requested was scheduled for 8 February 2008 and
on that date they asked Mr Makwela why there was a difference
in the
salary increases they received in 2007 and 2008. Mr Makwela said that
the Respondent lost a tender but he did not give them
any details
about the tender he lost.
[25]
The
employees requested Mr Makwela to increase their remuneration but he
responded by saying he would rather die than paying them
more and
that he was seeking advice on how to retrench them. Nothing was
further discussed about the retrenchment but the employees
became
scared and they went to the South African Chemical Workers Union
(‘the union’) to seek advice.
[26]
The
employees, including the applicants, joined the union on 12 February
2008. On 14 February 2008 the union sent a notice in terms
of section
21(1) of the Act to the Respondent, informing the Respondent who the
individuals were who joined the union and requesting
a meeting on 19
February 2008 to conclude a collective agreement in respect of
organisational rights. The name list of the employees
who joined the
union consisted of 36 individuals. Mr Phakoago testified that his
name was omitted from the list but it was an oversight
from the
union’s side as he also joined the union.
[27]
On 15
February 2008 and at around 13:00 the Applicants were called to the
change room where they were handed letters of retrenchment.
Mr
Phakoago confirmed that only the employees who were retrenched
received the letter of retrenchment. The letter stated that that
the
effective date of termination would be 29 February 2014.
[28]
In
paragraph 7 of the letter it was stated that consultations with all
staff that might be affected by the proposed retrenchments
were held
since 8 February 2008. Mr Phakoago denied that consultations were
held prior to receiving the letter of retrenchment
on 15 February
2008. He testified that the only meeting that took place prior to
receiving the letter of retrenchment on 15 February
2008, was the
meeting workers requested with Mr Makwela on 8 February 2008. He
testified that nothing about retrenchment was discussed
on 8 February
2008, Makwela did not say which contract was lost, which positions
would be affected and how it affected the business
in general.
[29]
In
paragraph 15 of the letter it is stated that should the position of
the Respondent change within a period of twelve months, the
Applicants would be the first in line for job opportunities in the
same or similar fields to the positions they previously held.
Mr
Phakoago referred to a name list of individuals employed by the
Respondent after the Applicants’ dismissal and testified
that
there were 36 new employees appointed in positions that are the same
or similar to the positions the Applicants previously
held. The
Applicants were not considered for appointment, as per paragraph 15
of the retrenchment letter.
[30]
Mr
Phakoago was of the view that the Applicants were retrenched on 15
February 2008 because they joined the union on 12 February
2008. He
however conceded that 37 persons joined the union and of those only
14 were retrenched and that the Respondent did not
retrench every
person who joined the union. The Respondent said that they were
retrenched because it lost a tender.
[31]
He
testified that the Applicants are seeking re-instatement and that the
Respondent has a lot of work to do.
[32]
Ms
Valencia Thokozile Hlatshwayo testified that the Respondent employed
her and on 15 February 2008 she received a letter titled
‘Notice
of Retrenchment in terms of section 213 of the Labour Relations Act’.
Others also received a similar
letter, which was handed to them
by Mr Makwela. She testified that approximately 18 persons were
retrenched and of those 14 belonged
to the union. The others who were
retrenched, did not belong to the union and the union members who
were not retrenched, remained
members of the union.
[33]
She
confirmed that no meeting was held regarding the retrenchment prior
to the letter she received on 15 February 2008 and no other
document
was handed to them, apart from the letter of 15 February 2008.
[34]
Ms
Hlatshwayo testified that the Applicants were seeking re-instatement.
Analysis of the evidence adduced
[35]
Dismissal
is not in dispute wherefore the Respondent has the onus to prove the
fairness of the Applicants’ dismissal. The
Respondent however
was not present and called no witnesses and placed no version before
this Court.
[36
]
After
due consideration of the pleadings and the testimony adduced, I
accept the following:
i.
The
Applicants were retrenched after they received a notice of
retrenchment on 15 February 2008;
ii.
The
Respondent did not follow a process that complied with the provisions
of section 189 of the Act;
iii.
There
was no written invitation to consult and consultation process to
consult on the issues a prescribed by the provisions of section
189(3) of the Act;
iv.
The
Applicants were not afforded an opportunity to make representations;
v.
The
reason the Respondent provided for the retrenchment was the fact that
it lost a tender. No detail about the tender was disclosed
and no
other information as contemplated in section 189(3) of the Act had
been disclosed. The Applicants were not informed what
the tender was
and how and to what extent it affected the business of the
Respondent.
vi.
There
is no nexus between the retrenchment and the fact that the Applicants
joined a trade union. The timing of joining the trade
union and
retrenchment is merely a coincidence and not the reason behind the
retrenchment. If that was the case, all union members
would have been
dismissed and that was not what happened.
vii.
The
Applicants are seeking retrospective re-instatement.
Closing arguments
[37]
In
closing argument Mr Baloyi on behalf of the Applicants conceded that
the evidence did not support a claim for automatically unfair
dismissal for reasons related to joining the union. That portion of
the Applicants’ claim was abandoned.
[38]
Mr
Baloyi argued that section 189 of the Act was not considered at all,
there was no notice issued in terms of the provisions of
section
189(3) of the Act and no fair procedure was followed. No selection
criteria had been used and there is simply no indication
of how
employees were selected for retrenchment. There was no indication
which contract was lost, which positions would be affected
and there
was no fair reason that existed before the retrenchments were
finalised.
[39]
Mr
Baloyi submitted that the Applicants would be seeking an order
declaring their dismissal substantively and procedurally unfair
and
to be re-instated retrospectively. The issue of costs was left for
the Court’s discretion.
The issues this Court has to
decide:
[40]
I
have to decide whether the Applicants’ dismissals were
procedurally and substantively fair.
[41]
In
view of the fact that no process was followed prior to the issuing of
the retrenchment letters on 15 February 2008 and no attempt
was made
to comply with the provisions of section 189 of the Act, I cannot but
find the Applicants’ dismissals procedurally
unfair.
[42]
The
issue that remains to be decided is whether the Applicants’
dismissals were substantively fair.
[43]
The
Respondent told the Applicants that it had to retrench the Applicants
as it lost a tender. The Respondent never provided them
with any
detail of the tender that was so lost and never disclosed information
on how that loss of the tender affected the business.
[44]
The
Applicants’ case is that there was no need to retrench them as
the Respondent’s business carried on as usual and
other persons
were employed in the same or similar positions they occupied before
they were retrenched.
[45]
The
only reason for retrenchment was the loss of a tender. There was no
evidence of the Respondent’s financial position before
this
Court, nor was there any proof of the contract or tender that the
Respondent lost. There was no evidence before this Court
to convince
me that the Respondent’s financial position was such that it
had to resort to the retrenchment of the Applicants
and that their
retrenchment in any way assisted to salvage the Respondent’s
financial position.
[46]
I
therefore find the dismissal of the Applicants substantively unfair.
[47]
The
Applicants stated that the relief they seek is retrospective
re-instatement. I can see no reason why the Applicants should not
be
awarded the relief they seek.
Costs
[48]
Costs
should be considered against the provisions of section 162 of the Act
and according to the requirements of the law and fairness.
[49]
The
requirement of law has been interpreted to mean that the costs would
follow the result.
[50]
In
considering fairness, this Court has held that the conduct of the
parties should be taken into account and that
mala
fide
,
unreasonableness and frivolousness are factors justifying the
imposition of a costs order. Another factor to be considered is
whether there is an ongoing relationship that would survive after the
dispute had been resolved by the Court. If so, a costs order
may
damage the ongoing relationship.
[51]
The
general accepted purpose of awarding costs is to indemnify the
successful litigant for the expense he or she has been put through
by
having been unjustly compelled to initiate or defend litigation.
[52]
I
take into consideration that the Applicants were represented on a pro
bono basis and that they had not incurred an expense in
that regard.
I also considered the fact that the Applicants are re-instated and
that being so would constitute an ongoing relationship
a cost order
may damage.
[53]
In the premises, I make
the following order:
Order
1.
The
Applicants’ dismissals were procedurally and substantively
unfair;
2.
The
Respondent is to re-instate the Applicants retrospectively with
effect from the date of their dismissal; without loss of benefits.
3.
No
order as to costs.
______________
Prinsloo,
AJ
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Mr Baloyi of Baloyi
Attorneys