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[2014] ZALCJHB 74
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Macuvele v Kensington Ridge Primary School (JS20/2013) [2014] ZALCJHB 74 (4 March 2014)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 20/2013
In the matter between:
JONA MABUSO
MACUVELE Applicant
and
KENSINGTON
RIDGE
PRIMARY
SCHOOL
Respondent
Heard:
27 February 2014
Delivered:
04 March 2014
Summary:
Applicant alleges that his retrenchment was procedurally and
substantively unfair. There were sound
operational reasons to
retrench. The Respondent failed to comply with provisions of section
189(3) of the Labour Relations Act.
Dismissal was substantively fair
and procedurally unfair.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The Applicant
approached this Court for relief as he claims that his dismissal was
substantively and procedurally unfair.
[2]
The Respondent
opposed the matter.
[3]
Prior to
commencement of the trial, the Applicant sought a postponement. After
considering the submissions made by the parties,
the request for
postponement was denied and the trial proceeded.
The pleadings and pre-trial
minute
[4]
In his statement of
case the Applicant claimed that he was dismissed on 7 December 2012
and that he was not consulted before the
decision to dismiss him was
taken. He claims that his dismissal was substantively and
procedurally unfair. Apart from stating that
he was not consulted
before he was dismissed, the Applicant provided no details of the
alleged procedural and substantive unfairness
in his statement of
case.
[5]
In its statement of
defence the Respondent stated that the Applicant was retrenched due
to operational reasons and that he was paid
a retrenchment package.
The Respondent further pleaded that a meeting was held with all staff
on 26 November 2012 and everybody
was informed about the Respondent’s
financial constraints and the shortfalls and were made aware of the
possibility of retrenchment.
A further meeting was held with the
Applicant and due to the fact that no alternatives could be
identified and because the position
occupied by the Applicant was not
sustainable and essential for the operations of the Respondent, he
was retrenched.
[6]
In the pre-trial
minute the parties agreed that the Applicant’s service was
terminated on 7 December 2012. It was disputed
that meetings took
place and that the Applicant was consulted prior to his retrenchment.
The financial hardship of the Respondent
was disputed as the reason
for the retrenchment.
[7]
The relief sought
by the Applicant is maximum compensation.
The evidence adduced
The Respondent’s testimony
[8]
Ms Jameson
testified on behalf of the Respondent (the school). She explained
that 580 learners are enrolled at the school. They
are predominantly
from poor areas and only 25% of the learners pay school fees. The
ability of the learners to pay school fees
has a direct impact on the
financial position of the school. In 2012 the school granted
exemption of school fees to the value of
R 950 000 and in 2013 the
exemptions were to the value of R 1 140 000. The school can submit
claims to the Department of Education
in respect of exempted school
fees and in 2013 the Department paid only R 34 000 to the school in
respect of the exempted fees
of R 1 140 000. The school experienced a
serious financial shortfall as its income for 2012 was R 1 609 121
and expenses R 1 788
395 and in 2013 the income was R 1 678 994 and
the expenses were R 1 744 936.
[9]
Towards the end of
2012 it became evident that the Respondent has to to cut costs. On 26
November 2012 a meeting was held and all
employees attended,
including the Applicant. The chairperson of the school governing body
(SGB) informed employees that the school
experienced a financial
shortfall and that fundraising and cost cutting measures were very
important. Employees were asked to make
proposals to cut costs.
Fundraising was a priority for the Respondent. Ultimately the
employees were informed that there is a need
to retrench the
employees who are paid from the school governing body’s funds.
[10]
The Applicant made
no proposals or alternative suggestions.
[11]
The Respondent
retrenched five employees and individual meetings were held with each
of them and their retrenchment packages were
discussed.
[12]
The package the
Applicant was paid included severance pay of 14 weeks, as he worked
for the Respondent for a period of 14 years,
his salary for December
2012, one month’s notice, a bonus and an additional amount of R
5000. The money was paid to the Applicant
via an electronic fund
transfer to his bank account and R 2000 was paid to him in cash.
[13]
Ms Jameson
explained that the Applicant’s job at the school was minor
maintenance, repairs and painting and no one else held
a similar
position. The Applicant was selected for retrenchment, as it was not
necessary to employ a person on a full time basis
to do maintenance,
repairs and painting. The parents and sponsors could assist with the
tasks performed by the Applicant.
[14]
The Applicant was
retrenched at the end of 2012 and so were four other employees paid
by the SGB.
[15]
The Applicant cross-examined Ms Jameson and he asked her why he was
retrenched as other individuals paid by the SGB are still
employed at
the school. Ms Jameson responded that the school retrenched five
employees in 2012 and the ones paid by the SGB and
who are still
employed, perform other functions and are still needed.
[16]
Mr Macuvele put it
to Ms Jameson that he was paid too little and he was complaining
about the amount of money he was paid, given
the number of years he
worked for the school. Ms Jameson explained that he was paid 14 weeks
severance pay for the 14 years he
worked and he was paid one month’s
notice pay, which he was not required to work.
The Applicants’ testimony
[17]
The Applicant, Mr
Macuvele, testified that he worked for the school for 14 years and he
was not happy about the pay he received
and that he was given one
day’s notice of his retrenchment. Ms Jameson explained that he
was told on 7 December 2012 that
he was retrenched and the school
closed the next day. He was however aware of the retrenchment
before that date. The
Applicant was paid his full salary for
December 2012 and he was paid another month’s notice pay.
[18]
Mr Macuvele
testified that he was retrenched because the Respondent did not like
him and because he asked questions about his salary.
This version was
never put to Ms Jameson and was also not the Applicant’s case
in his statement of case.
[19]
In
cross-examination the Applicant admitted that a meeting was held in
November 2012 but denied that the financial shortfall was
discussed.
[20]
Mr Macuvele said
that the relief he seeks from the Court is to increase his
retrenchment package as he was not satisfied with the
package he
received.
Analysis of the evidence adduced
[21]
After due
consideration of the pleadings and the testimony adduced, I accept
the following as common cause:
i.
The Respondent
experienced financial difficulties in 2012 and 2013 and suffered
substantial financial short falls;
ii.
A meeting was held
on 26 November 2012, which meeting the Applicant attended, and the
financial difficulties of the Respondent and
the need to retrench had
been discussed at this meeting;
iii.
The Applicant was
not issued with the required notice of anticipated retrenchment as
provided for in section 189(3) of the Labour
Relations Act;
iv.
The Applicant was
paid severance pay of 14 weeks, as he worked for the Respondent for a
period of 14 years, his salary for December
2012, one month’s
notice pay, a bonus and an additional amount of R 5000.
Closing arguments
[22]
In closing argument
Mr Spiller on behalf of the Respondent submitted that the evidence
shows that the Respondent was in serious
financial difficulty and the
financial state of the Respondent was not disputed or challenged. Mr
Spiller submitted that this Court
should accept that there was a
clear economic objective and need to and retrench. The retrenchment
was substantively fair.
[23]
In respect of the
procedure Mr Spiller conceded that the Respondent did not follow the
process as prescribed by the Labour Relations
Act to the letter.
However, the Applicant was present at the meeting where the shortfall
was explained and he was asked for proposal
to eliminate the
shortfall, but made no proposals. Although the ‘boxes’
cannot be ticked, the Respondent made an attempt
to consult with the
Applicant and to put measures in place to avoid retrenchment. The
Respondent is a public school that is already
cash strapped and is
not a big organisation with unlimited funds and access to external
advisors and consultants. The Respondent
deviated from the provisions
of the Labour Relations Act, but such deviation is understandable.
[24]
Mr Spiller argued
that the severance package that was paid to the Applicant exceeded
the minimum that is prescribed by the provisions
of the Basic
Conditions of Employment Act. The school is still in a
financial vulnerable position and it tried to engage
the Applicant
and his former attorneys on a number of occasions to resolve the
matter, but was met with nothing but an obstructive
and uncooperative
attitude.
[25]
Mr Spiller
submitted that the Applicant’s dismissal was substantively fair
and in respect of the procedural non-compliance,
compensation should
be awarded, but the relevant circumstances dictate that the amount of
compensation should be low.
[26]
Mr Macuvele stated
that he worked for the school for 14 years and after so many years
the money he received was too little. He cannot
maintain his children
with the little money he was paid. He emphasized that he was not
satisfied with the money he was paid.
The issues this Court has to
decide:
[27]
The Court is to
determine whether the Respondent had any operational requirements
that required and justified the dismissal of the
Applicant and
whether a fair procedure was followed.
The Respondent’s
operational requirements:
[28]
Was there a need to
restructure and to retrench?
[29]
Ms Jameson
testified about the financial difficulties the Respondent experienced
in 2012 and 2013 and the financial shortfalls were
presented in her
evidence. She testified that a total number of five persons were
retrenched in 2012. Ms Jameson’s evidence
in this regard was
not disputed.
[30]
The Applicant did
not in his own testimony before this Court dispute the Respondent’s
poor financial position nor was the
Respondent’s testimony in
this regard disputed. The Applicant did not dispute the evidence
adduced in respect of the financial
shortfalls and the fact that the
Respondent suffered losses in 2012 and 2013.
[31]
In the pleadings
and pre-trial minute the Applicant disputed the need to retrench and
disputed that financial hardship was the real
reason for his
dismissal.
[32]
However, during the
trial the Applicant did not challenge the Respondent’s
financial position and did not adduce any evidence
to rebut the
Respondent’s case that it suffered financially and had to
retrench.
[33]
I accept that the
Respondent experienced financial difficulties in 2012 and 2013 and
that it had an operational need to retrench
staff.
[34]
There was
sufficient evidence before this Court to convince me that the
Respondent’s operational requirements justified the
dismissal
of the Applicant.
Was a fair procedure followed:
[35]
It was common cause
that a meeting was held on 26 November 2012 and it is the
Respondent’s case that at this meeting the financial
difficulties of the Respondent and the need to retrench had been
discussed.
[36]
In respect of the
procedure Mr Spiller conceded that the Respondent did not follow the
process as prescribed by the Labour Relations
Act to the letter.
However, the Applicant was present at the meeting where the shortfall
was explained and he was asked for proposal
to eliminate the
shortfall, but made no proposals. Although the ‘boxes’
cannot be ticked, the Respondent made an attempt
to consult with the
Applicant and to put measures in place to avoid retrenchment.
[37]
The Applicant in
his testimony before this Court did not vigorously challenge the
procedure followed by the Respondent and he did
not in his own
testimony address the procedural fairness of his dismissal.
[38]
The evidence before
me shows that the Applicant was present at a meeting where the
financial difficulties of the Respondent and
the need to retrench had
been discussed. A follow up meeting was held with him and the
Respondent’s case is that there was
an attempt to engage in a
joint consensus seeking process, albeit not a perfect one.
[39]
It is evident to me
that the Applicant was not issued with a notice as contemplated in
section 189(3) of the Labour Relations Act
and that the process as
prescribed by the Act was not followed. I am however not convinced on
the evidence before me that no process
was followed at all.
[40]
The Respondent
attempted to follow a process and insofar as the process followed did
not comply with the provisions of the Act,
it was unfair.
[41]
The Applicant’s
dismissal was therefore procedurally unfair.
Conclusion
[42]
In my observation
the crux of the Applicant’s case is that he feels that he
should have been paid more than the minimum prescribed
severance pay
of one week’s salary for each completed year of service. In the
Applicant’s mind he was entitled to more
than the minimum as he
worked for the Respondent for 14 years and he repeatedly expressed
his dissatisfaction with the ‘little
money’ he received
after 14 years of service.
[43]
The relief the
Applicant seeks from this Court is that his severance package be
increased.
[44]
The truth is
however that the Respondent paid the Applicant severance pay of 14
weeks for the 14 years he worked for the Respondent,
his salary for
December 2012, one month’s notice pay, a bonus and an
additional amount of R 5000. The Applicant was paid
more than what he
was in law entitled to.
[45]
The Applicant was
obstructive and difficult in all attempts the Respondent made to
settle the matter with him and he persisted with
his claim that this
Court should increase his severance package.
[46]
In law the Applicant is not entitled to more than one week’s
salary for each completed year of service and because he
was already
paid more than what the law requires, this Court cannot increase his
severance package.
[47]
In the premises, I make the following
order:
Order
1.The Applicant’s
dismissal was substantively fair;
2. The Applicant’s dismissal was
procedurally unfair insofar as section 189(3) of the Labour Relations
Act was not complied
with;
3.
The Respondent is
to compensate the Applicant in the amount equivalent to 3 months
remuneration calculated at the rate of remuneration
he received at
the date of his dismissal;
4.
No
order as to costs.
_____________________
Connie
Prinsloo
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
In person
For
the Respondent:
Advocate Spiller
Instructed by Gael Barrable Attorneys