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[2014] ZALCJHB 39
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Transport And Allied Workers Union of South Africa and Others v RP Logistix (Pty) Ltd (JS664/2012) [2014] ZALCJHB 39 (11 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 664/2012
In the matter between:
TRANSPORT AND ALLIED WORKERS’
UNION
OF SOUTH
AFRICA
First Applicant
D TSHABALALA AND 54
OTHERS Second
to further Applicants
and
R
P LOGISTIX (PTY)
LTD
Respondent
Heard:
27 and 28
January 2014
Delivered:
11 February 2014
Summary:
Unfair dismissal in terms of the provisions of section 189 of the
Labour Relations Act. No operational
requirement existed for
dismissal. Dismissal unfair.
JUDGMENT
PRINSLOO, AJ
Introduction
[1
]
The
Applicants approached this Court for relief as they claim that their
dismissal was substantively and procedurally unfair.
[2]
The
Respondent opposed the matter.
[3]
The
matter was enrolled for trial on 27 January 2014 and prior to the
commencement of the trial, it became evident that the Respondent
raised a point
in
limine
namely that section 189A(18) of the Labour Relations Act
[1]
(the Act) precluded the Court from adjudicating the procedural
fairness of the Applicants’ dismissal. The Applicants have
challenged the procedural fairness of their dismissal in an urgent
application at the time of the retrenchment and they cannot
challenge
the procedural fairness of their retrenchment during this trial.
[4]
Mr
Memani for the Applicants conceded that it was indeed the legal
position and he abandoned the portion of the Applicants’
claim
that relates to procedural unfairness.
[5]
The
trial proceeded only in respect of the substantive fairness of the
retrenchment. The parties were afforded an opportunity to
amend the
pre-trial minute as a substantial portion of the issues in dispute
and to be determined fell away as procedural fairness
was not to be
determined.
[6]
Before
turning to the merits of the case, it is necessary to give a brief
overview of the facts that are common cause between the
parties and
those that are in dispute.
The pleadings and pre-trial
minute
[7]
In
its statement of case the Applicants claimed that there were no valid
reasons to retrench them.
[8]
The
Respondent in its statement of defence pleaded that the Applicants’
dismissals took place as a result of a demand by the
First Applicant
(the union or TAWUSA) to retrench its members so that they could find
work closer to Alrode. It was also pleaded
that the demand by TAWUSA
was for the retrenchment of all TAWUSA members and that the
Respondent conceded one of the union’s
demands. It was
specifically denied that the Applicants’ dismissal was unfair
and that the dismissals occurred purely because
of operational
reasons.
[9]
The parties signed a pre-trial minute and the Applicants once again
denied that there was a need to retrench. The Respondent
contended
that the union demanded the retrenchment of all the union members.
[10]
It
was disputed whether the dismissal of the Applicants was fair,
whether Mr Madolo had a mandate from the general meeting to demand
the retrenchment of the TAWUSA members in Cape Town and Johannesburg,
whether there was any agreement that the Applicants would
be
voluntarily retrenched and whether there was a valid reason for the
retrenchment.
[11]
The
relief sought by the Applicants is retrospective re-instatement.
The evidence adduced
[12]
It is
common cause between the parties that the Respondent retrenched the
Applicants on 26 April 2012.
The Respondent’s testimony
[13]
Ms
Masinamela, the Respondent’s director human resources,
testified that the Respondent moved its premises from Alrode to
Isando, approximately 30 – 40 kilometres apart, during February
2012. This move did not result in any job losses, nor was
any
retrenchment anticipated as a result of the move. On 23 February 2012
the Respondent had a meeting with TAWUSA and two issues
were to be
discussed namely the retrenchment of two controllers and the move
from Alrode to Isando. The retrenchment of the two
controllers was
finalised and was never a contentious issue and is not relevant for
purposes of this trial.
[14]
The
only issue that remains relevant was the move from Alrode to Isando.
Ms Masinamela, Mr Madolo of TAWUSA and two shop stewards
attended the
meeting. TAWUSA demanded a transport allowance as workers had to
travel further and spend more on transport due to
the move to Isando.
[15]
During
the meeting of 23 February 2012 Mr Madolo put three options on the
table namely that the Respondent either pays a travel
allowance of R1
per hour worked or an once-off allowance of R 3000, or that it
retrenches all TAWUSA members in the company, alternatively
and if
those options were not adhered to the union would declare a dispute
on all issues, including the retrenchment of the two
controllers and
the non-payment of a transport allowance. Mr Madolo stated that the
Respondent should give him an answer on which
option is accepted as
there was a TAWUSA general meeting scheduled for 26 February 2012 and
he wanted to table the issue at the
general meeting.
[16]
On 24
February 2012 the Respondent wrote a letter to TAWUSA indicating that
the mandate to retrench all TAWUSA members was accepted.
[17]
On
the same date Ms Masinamela issued a document setting out the reasons
for retrenchment and all the other factors as required
by the
provisions of section 189(3)(a) – (j) of the Act. In this
letter it was indicated that the affected employees would
be the
TAWUSA members in Johannesburg and the proposed method of selecting
the employees to be retrenched would be all members
of TAWUSA in
Johannesburg.
[18]
Subsequent
to the TAWUSA general meeting and on 28 February 2012 TAWUSA
responded to the Respondent’s letter of 24 February
2012 and
insisted on the ‘
total
retrenchment of all our members in R P Logistix (Pty) Ltd Cape Town
and Johannesburg.’
[19]
The drivers in Cape Town were in no way affected by the move from
Alrode to Isando and they were not claiming the transport
allowance.
[20]
Ms
Masinamela testified that she was surprised as Cape Town was not part
of the initial discussions and she did not know why they
were
included. On 29 February 2012 the Respondent replied to TAWUSA’s
letter of 28 February 2012 and stated that the affected
employees are
the TAWUSA members in Johannesburg only and that Cape Town was never
discussed. It was made clear that the Respondent
only accepted the
voluntary retrenchment of TAWUSA members based in Johannesburg.
[21]
Following
the letter of 29 February 2012 a meeting was held on 1 March 2012. Ms
Masinamela, Mr Madolo and the two shop stewards,
Mr Mqolwana and Mr
Tshabalala, attended this meeting. The primary purpose of the meeting
was to get clarity on TAWUSA’s position.
Mr Madolo said that
the mandate from TAWUSA, as confirmed at the general meeting and part
of the union resolutions taken on 26
February 2012, is that all
TAWUSA members be retrenched. All TAWUSA members included those in
Johannesburg and Cape Town, as they
could not be divided. It was also
made clear that any of the options put forward by TAWUSA might be
withdrawn.
[22]
Ms
Masinamela enquired about the reason for including the Cape Town
employees and Mr Madolo emphasized that it was the mandate given
by
members and as taken at the general meeting on 26 February 2012 and
that the Respondent could not change the mandate so given.
[23]
Ms
Masinamela concluded the meeting by stating that she would have to
take the union’s position to management and that a written
response would follow.
[24]
On 7
March 2012 Ms Masinamela addressed a letter to TAWUSA wherein she
responded to TAWUSA’s demands. The first two demands
were that
the Respondent pays a travelling allowance (R1 per hour worked or
once off R 3000) to the employees. The Respondent’s
position
was that it could not acceded to those demands. The last demand or
option was that the Respondent retrenches all TAWUSA
members,
including Cape Town. The Respondent’s position on this was that
it has reached consensus with the union on the retrenchments,
but it
accepted only the voluntary retrenchment of TAWUSA members based in
Johannesburg.
[25]
After
the Respondent made it clear that it was only going to retrench the
Johannesburg TAWUSA members, Mr Madolo sent a letter to
the
Respondent on 12 March 2012 stating that the TAWUSA members mandated
him to withdraw the proposal of being retrenched in the
event the
Respondent was not prepared to pay a travelling allowance. He
suggested a meeting to discuss the move to Isando further.
[26]
On 16
March 2012 Ms Masinamela responded and expressed the Respondent’s
surprise at the withdrawal of the agreement to be
retrenched. She
indicated that the Respondent was prepared to meet with the union and
proposed a meeting for 22 March 2012. On
20 March 2012 Mr Madolo in a
letter refused to meet the Respondent ‘
regarding
our proposal which has been withdrawn.’
[27]
On 22
March 2012 Ms Masinamela responded to TAWUSA and re-iterated the
Respondent’s commitment to engage in a meaningful joint
consensus seeking process and she urged the union to consult with the
Respondent. This letter was never responded to and a follow
up letter
was sent on 28 March 2012, wherein the Respondent requested a meeting
for 29 or 30 March 2012. Nothing was heard from
Mr Madolo and the
Respondent approached Mr Mankge, TAWUSA’s general secretary for
intervention. He was requested to meet
with the Respondent on 5 April
2012. That date was not suitable to the parties and on 5 April 2012 a
meeting was confirmed for
13 April 2012.
[28]
The
meeting took place on 13 April 2012 and Ms Masinamela, Mr Madolo and
the two shop stewards, Mr Mqolwana and Mr Tshabalala, attended
this
meeting. At this meeting it was the Respondent’s position that
it accepted the union’s mandate to retrench and
it was late in
the process to withdraw such a mandate. The Respondent accepted the
union’s mandate to retrench as the Respondent
wanted to make
the Johannesburg depot a turn-around depot. TAWUSA’s position
was that the mandate to retrench was withdrawn
and should the
Respondent wish to proceed with the retrenchments, it should follow
the correct process as stipulated in section
189 of the Act. The
union made it clear that they were not in consultation with the
Respondent and should the Respondent proceed
with the retrenchments,
the union would lodge a dispute. That concluded the meeting.
[29]
On 13 April 2012 TAWUSA addressed a letter to the Respondent wherein
it raised concerns about the issue of restructuring raised
by the
Respondent. The Respondent indicated in a letter dated 10 April 2012
that its intention was to retrench 56 employees due
to a
restructuring process and TAWUSA made it clear that the restructuring
was new to them and is separate from the matter of moving
from Alrode
to Isando. If a new process of restructuring was envisaged, the
Respondent had to follow the provisions of section
189A of the Act.
[30]
On 16
April 2012 the Respondent replied to the letter and denied that the
retrenchment of 56 drivers was a new matter as a letter
to that
effect was already issued on 24 February 2010. The process was
continuing and the Respondent intended to finalise the process
by 26
April 2012. On 23 April 2012 the union responded and insisted that
consultation should be done in terms of section 189A.
[31]
On 26
April 2012 the Respondent issued letters or termination to the
individual applicants and paid them one months’ notice
pay and
severance pay of one week for each completed year of service.
[32]
In
cross-examination Ms Masinamela testified that she was surprised at
the meeting of 23 February 2012 when the union raised the
issue of
retrenchments as the discussions all along were in connection with
the payment of a travel allowance. She testified that
when Mr Madolo
proposed retrenchment if the Respondent was not prepared to pay a
travel allowance, the two shop stewards in attendance
did not differ
from him. In her presence they were in agreement with Mr Madolo’s
proposal.
[33]
Ms
Masinamela conceded that the Applicants were not given any other
reason for the retrenchment as that the Respondent was accepting
a
mandate presented by Mr Madolo.
[34]
Ms
Masinamela testified that it was the first time she experienced a
situation where a trade union demands a retrenchment and for
the
members of the union to follow the demand. She conceded that the
demand was for the Respondent to retrench all TAWUSA members
and she
could not see why the Cape Town drivers should be included. TAWUSA
insisted that the Respondent could not change the mandate
by
retrenching only the Johannesburg drivers.
[35]
Ms
Masinamela conceded that she had doubts about the proposal from
TAWUSA wherefore she asked the shop stewards if they really wanted
to
be retrenched. The Respondent did not propose and did not initiate
the retrenchment process. The shop stewards confirmed that
the
mandate was that all TAWUSA members should be retrenched. She
regarded the mandate to retrench as strange and irrational, but
it
was taken seriously.
[36]
Ms
Masinamela testified that on 1 March 2012 there was no agreement on
the retrenchments as the union was still discussing the three
options
on the table. Ms Masinamela agreed that the mandate regarding
retrenchment could still be withdrawn and that the union
regarded the
matter as still open for and subject to discussion. She agreed that
there was no final agreement on 1 March 2012 but
in her view there
was agreement on the retrenchment of the Johannesburg drivers.
[37]
Mr
Memani put it to the witness that the Respondent was acting in bad
faith in that it persisted with a stance that there was an
agreement
to retrench when the union withdrew from that proposal and the
process to retrench was simply proceeded with. Ms Masinamela
testified that the decision to retrench was taken and the Respondent
merely proceeded with a process the union started.
[38]
Ms
Masinamele conceded that there was no consensus on 23 February 2012
as the TAWUSA general meeting still had to take place. She
testified
that the union gave the Respondent a mandate to retrench and the
Respondent merely acceded to that mandate.
[39]
Ms
Masinamela testified that the union demanded a transport allowance
and that was not going to be paid by the Respondent. If the
Respondent retrenched the individual applicants, that would be the
end of the transport issue and if not, the demand for transport
allowance would never end. The Respondent’s decision was to
accept the proposal from the union to retrench.
The Applicants’ testimony
[40]
Mr
Daniel Tshabalala testified on behalf of the Applicants. He testified
that he was present in all the meetings held between the
Respondent
and TAWUSA and Mr Madolo. He confirmed that Ms Masinamela was
surprised when Mr Madolo said that if the Respondent did
not want to
pay a transport allowance, the workers should be retrenched and she
asked them if they really wanted to be retrenched.
He confirmed that
Mr Madolo stated on 1 March 2012 that his mandate was to advise the
Respondent to retrench all TAWUSA members,
including the Cape Town
drivers.
[41]
Mr
Tshabalala testified that when Ms Masinamela asked him at the meeting
of 23 February 2012 whether they wanted to be retrenched,
he
responded that they were not there to talk about retrenchment but
they were there to demand a transport allowance from Alrode
to
Isando.
[42]
On 1 March 2012 the union’s mandate was that if the TAWUSA
members in Johannesburg are to be retrenched, so should the
ones in
Cape Town. This was an expression of solidarity amongst TAWUSA
members and the message to the Respondent was that if the
retrenchment process is proceeding, the Cape Town drivers should be
retrenched or else the proposal would be abandoned. He testified
that
the atmosphere at the meeting of 1 March 2012 was tense.
[43]
Mr
Tshabalala testified that the Applicants were seeking re-instatement.
[44]
In
cross-examination Mr Tshabalala confirmed that the mandate TAWUSA
took from the general meeting to the Respondent was that if
the
Respondent wanted to retrench, all TAWUSA members should be
retrenched, even the drivers in Cape Town and if that did not happen
the mandate and proposals were withdrawn.
Closing arguments
[45]
In
closing argument Mr Memani on behalf of the Applicants submitted that
this Court has to consider two main issues namely whether
the
Respondent had a valid reason to dismiss the Applicants and whether
such dismissal was pursuant to an agreement between the
Applicant and
TAWUSA.
[46]
Mr
Memani submitted that there was no evidence before this Court to show
that the Respondent had a valid reason to retrench. There
was no
operational reason to retrench and therefore the Respondent is
precluded from relying on the provisions of section 189 of
the Act.
The Respondent could, in the absence of an operational reason, not
have invoked the mechanism of retrenchment provided
for in section
189 of the Act.
[47]
The
Respondent’s case is that the Applicants were retrenched as a
result of an agreement between the parties. Mr Memani argued
that the
Respondent did not accept the demand made by TAWUSA and therefore no
agreement could be concluded. The parties were not
ad
idem
on the issues, the proposals were still on the table and open for
discussion and there was no unequivocal acceptance of the
retrenchment.
The conduct of the Respondent showed that it was not
acting in accordance with any agreement. On 24 February 2012 the
Respondent
sets out the scheme of the retrenchment, how it would be
done and who would be affected and this was done prior to any
agreement
and not in accordance with any agreement. There was no
agreement reached on 23 February 2012 or on any date thereafter.
[48]
Mr
Memani argued that the Respondent did not rely on any operational
requirement, but relied on an agreement that was never concluded.
No
reference was made to the Respondent’s financial position or
operational needs whatsoever in the pleadings.
[49]
In
closing argument Mr Rood on behalf of the Respondent submitted that
the Respondent had valid reasons for the retrenchment of
the
Applicants. The Respondent made calculations and accepted the
retrenchment to be operationally justified. He submitted that
the
union demanded the retrenchment and the Respondent merely acceded to
the demand.
[50
]
Mr
Rood further argued that the Respondent dismissed the Applicants for
‘similar needs’. Acceding to the demand was
a similar
need as the retrenchment avoided future strike action.
Analysis of the evidence adduced
[51]
The
Applicant and Respondent called one witness each and the testimony
adduced in respect of relevant and material aspects, was
not
contradictory. After due consideration of the pleadings and the
testimony adduced, I accept the following as common cause:
i.
A
meeting took place between TAWUSA and the Respondent on 23 February
2012 and TAWUSA’s Mr Madolo put three options on the
table
namely that the Respondent pays a travel allowance of R1 per hour
worked or an once-off allowance of R 3000, alternatively
that it
retrenches all TAWUSA members in the company, alternatively that the
union would declare a dispute on all issues;
ii.
On
24 February 2012 the Respondent wrote a letter to TAWUSA indicating
that the mandate to retrench all TAWUSA members was accepted
as the
Respondent was not prepared to pay the transport allowance;
iii.
Subsequent
to the TAWUSA general meeting that took place on 26 February 2012 and
on 28 February 2012 TAWUSA responded to the Respondent’s
letter
of 24 February 2012 and insisted on the ‘
total
retrenchment of all our members in R P Logistix (Pty) Ltd Cape Town
and Johannesburg.’
At
this point Mr Madolo was acting on the mandate of TAWUSA and its
members;
iv.
On
1 March 2012 the parties held a meeting and the primary purpose of
the meeting was to get clarity on TAWUSA’s position.
Mr Madolo
said that the mandate from TAWUSA, as confirmed at the general
meeting and part of the union resolutions taken on 26
February 2012
is that all TAWUSA members be retrenched;
v.
On
7 March 2012 the Respondent’s position conveyed to TAWUSA was
that it has reached consensus with the union on the retrenchments,
but it accepted only the voluntary retrenchment of TAWUSA members
based in Johannesburg. The demand that Cape Town drivers should
be
retrenched was rejected;
vi.
After
the Respondent made it clear that it was intending to retrench the
Johannesburg TAWUSA members only, Mr Madolo sent a letter
to the
Respondent on 12 March 2012 stating that the TAWUSA members mandated
him to withdraw the proposal of being retrenched in
the event the
Respondent was not prepared to pay a travelling allowance;
vii.
Ms
Masinamela was surprised when TAWUSA proposed that the individual
applicants be retrenched in the event the Respondent was not
going to
pay a transport allowance to the workers;
viii.
The
mandate or demand from the union was from the onset that all TAWUSA
members be retrenched and the letter from the Respondent
dated 24
February 2012 confirmed that ’
Management
has considered all the above mandates and would like to confirm that
we accept your mandate to retrench all employees
(TAWUSA members);
ix.
The
Applicants were retrenched after they received a notice of
retrenchment on 26 April 2012.
x.
The
reason the Respondent provided for the retrenchment was that it
acceded to a demand from the union.
xi.
The
Applicants are seeking retrospective re-instatement.
[52]
It is
evident from the contents of the minutes of the meetings that TAWUSA
on 23 February 2012 submitted that it had a mandate to
demand from
the Respondent to pay them extra money for travelling costs or to
‘
retrench
all of them.’
The
Respondent on 24 February 2012 said that ’
Management
has considered all the above mandates and would like to confirm that
we accept your mandate to retrench all employees
(TAWUSA members).
It
is evident to me that the mandate or demand from the onset was for
the retrenchment of ALL TAWUSA members. It might not have
been
understood to include Cape Town but objectively ‘all TAWUSA
members’ cannot mean anything else than that it should
include
all members, irrespective of their location.
[53]
When
the Respondent accepted to retrench the Johannesburg TAWUSA members
and refused to retrench the Cape Town members, TAWUSA made
it clear
that either all TAWUSA members be retrenched, or the mandate to
retrench would be withdrawn. The mandate was subsequently
withdrawn.
[54]
In
retrenching the Johannesburg TAWUSA members and refusing to retrench
the Cape Town TAWUSA members, the Respondent did not accede
to a
demand made by the union. The demand was to retrench all TAWUSA
members and that demand was not acceded to.
[55]
The
Applicants are seeking retrospective re-instatement. The Respondent
did not adduce any evidence why that relief should not or
could not
be granted, nor did the Respondent challenge Mr Tshabalala during
cross-examination on the issue of re-instatement.
The issues this Court has to
decide:
[56]
The
Court is to determine whether the Respondent had any operational
requirements that required and justified the dismissal of the
Applicants (the need to retrench) and whether there were voluntary
retrenchments pursuant to a demand made by TAWUSA and an agreement
between the parties.
The Respondent’s
operational requirements:
[57
]
Was
there a need to retrench?
[58]
The
Respondent’s position as is evident from the pleadings and
testimony of Ms Masinamela is that it moved from Alrode to
Isando in
February 2012 and that this move did not cause any job losses and did
not require a retrenchment process. TAWUSA however
demanded a
transport allowance as a result of the move and the transport
expenses incurred by its members.
[59]
The
Respondent’s stance was that it was unable to accede to the
demand of a transport allowance and TAWUSA met this with something
that could be called a proposal or mandate or demand to retrench all
its members. This demand certainly surprised the Respondent,
as the
Respondent was not contemplating retrenchment as a result of the move
from Alrode to Isando.
[60]
The
Respondent’s case was that the retrenchments took place
pursuant to TAWUSA’s demand and that it was simply acceding
to
the union’s demand. Ms Masinamela testified that no other
reason was provided to the Applicants for their retrenchment
but that
it was done because the union demanded it and because there was an
agreement to retrench. In the statement of defence
the Respondent
pleaded specifically that the Applicants’ dismissals did not
occur purely because of operational reasons.
[61]
The
Applicants’ case is that there was no need to retrench and
there were no valid reasons to retrench them.
[62]
Section
213 of the Act defines operational requirements as ‘requirements
based on the economic, technological, structural
or similar needs of
an employer.’
[63]
The
only reason for the Applicants’ retrenchment was the demand
made by TAWUSA. There was no evidence of the Respondent’s
economic, technological, structural or similar needs. There was no
case pleaded to show an economic, technological, structural
or
similar need. Mr Roodt argued that the retrenchment was for a
‘similar need’ in that it was to avoid a strike about
the
transport allowance. Innovative as that argument may be, it was not
supported by evidence and was certainly not the Respondent’s
case as per the pleadings before this Court.
[64]
The
only evidence was that the Applicants were retrenched to accede to a
demand from the union. In my view that cannot be an operational
requirement as contemplated by the Act.
[65]
In
any event by retrenching the Johannesburg TAWUSA members and refusing
to retrench the Cape Town TAWUSA members, the Respondent
did not
accede to the demand made by the union, as the demand was to retrench
all TAWUSA members.
[66]
There
was no evidence before this Court to convince me that there was
operational requirement that justified the dismissal of the
Applicants.
Was there an agreement to
retrench pursuant to the demand:
[67]
The
demand was to retrench all TAWUSA members. On 23 February 2012 Mr
Madolo put three options on the table one of which was that
the
Respondent retrenches all TAWUSA members in the company. On 24
February 2012 the Respondent wrote a letter to TAWUSA indicating
that
the mandate to retrench all TAWUSA members was accepted.
[68]
Subsequent
to the TAWUSA general meeting and on 28 February 2012 TAWUSA
responded to the Respondent’s letter of 24 February
2012 and
insisted on the ‘
total
retrenchment of all our members in R P Logistix (Pty) Ltd Cape Town
and Johannesburg.’
[69]
Ms
Masinamela testified that on 1 March 2012 there was no agreement on
the retrenchments as the union was still discussing the three
options
on the table. Ms Masinamela agreed that the mandate regarding
retrenchment could still be withdrawn and that the union
regarded the
matter as still open for and subject to discussion. She agreed that
there was no final agreement on 1 March 2012.
[70
After
the Respondent made it clear on 7 March 2012 that it was intending to
retrench the Johannesburg TAWUSA members only, Mr Madolo
sent a
letter to the Respondent on 12 March 2012 stating that the TAWUSA
members mandated him to withdraw the proposal of being
retrenched.
[71]
At
the meeting that took place on 13 April 2012 TAWUSA’s position
was that the mandate to retrench was withdrawn and should
the
Respondent wish to proceed with the retrenchments, it should follow
the correct process as stipulated in section 189 of the
Act. The
union made it clear that they were not in consultation with the
Respondent and should the Respondent proceed with the
retrenchments,
the union would lodge a dispute.
[72]
It is
evident from the testimony that there was no agreement reached
between the parties and that there was no consensus on the
retrenchments. The demand was for the retrenchment of all TAWUSA
members and on the Respondent’s own version it never agreed
to
this demand and was not prepared to retrench the Cape Town drivers.
[73]
It is
further evident from the chronological sequence of events that as
from 23 February 2012 until 12 March 2012 that the demand
was made
but still subject to discussion, that it could be withdrawn at any
time and that it was indeed withdrawn on 12 March 2012.
At no point
was there consensus on the retrenchment.
[74]
The
Respondent proceeded with the retrenchments as if there was an
agreement and persisted with the stance that an agreement was
reached
when all the facts indicated the contrary. Ms Masinamela’s own
testimony was that on 1 March 2012 there was no agreement,
yet the
Respondent persisted with its position that an agreement was reached
on 24 February 2012. This is clearly an untenable
position.
[75]
I
cannot accept that the retrenchment of the Applicants was voluntary
and pursuant to an agreement between the Respondent and TAWUSA.
[76]
I
therefore find the dismissal of the Applicants substantively unfair.
[77]
The
Applicants stated that the relief they seek is retrospective
re-instatement and in the absence of any evidence as to why
re-instatement
would not be possible, I can see no reason why the
Applicants should not be awarded the relief they seek.
Costs
[78]
Costs
should be considered against the provisions of section 162 of the Act
and according to the requirements of the law and fairness.
[79]
The
requirement of law has been interpreted to mean that the costs would
follow the result.
[80]
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.
[81]
In my
view this case does not warrant a cost order, more so because there
is an ongoing relationship between the parties. The evidence
was that
the Respondent deals with TAWUSA on an ongoing basis.
[82]
In the premises, I make
the following order:
Order
1.
The
Applicants’ dismissals were 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 Applicants:
Advocate F R Memani
For
the Respondent:
Advocate C Roodt
[1]
Act 66 of 1995.