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[2014] ZALCJHB 231
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Maseko v National Union of Mineworkers (JS22/2012) [2014] ZALCJHB 231 (8 July 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE
NO: JS22/2012
In
the matter between:
ALFRED
MASEKO
Applicant
and
THE
NATIONAL UNION OF
MINEWORKERS
Respondent
Heard:
20 and 21 February 2014; 24 and 25 March 2014.
Order:
01 July 2014
Judgment:
08 July 2014
Summary:
Retrenchment substantively and procedurally fair. No order as
to costs
JUDGMENT
AC
BASSON J.
Introduction
[1]
In this matter the applicant (“Mr
Maseko”) is claiming that his dismissal by the National Union
of Mineworkers (“NUM”)
was substantively and procedurally
unfair. He seeks his retrospective reinstatement.
[2]
NUM
claims that the applicant’s dismissal was based on operational
requirements as contemplated by section 189 of the Labour
Relations
Act
[1]
(“the LRA”)
and that the dismissal was substantively and procedurally fair.
[3]
Three witnesses were called on behalf of
NUM. All three of them gave detailed evidence about the extensive
restructuring project
that NUM underwent in 2010 including the
rationale thereof. It appears from the evidence that NUM had employed
the services of
an independent consultancy group (21 Century Pay
Solutions Group (Pty) Ltd – “the Consultants”) to
assess the
organisational structure and to propose a more effective
organisational structure which speaks to the strategic priorities of
NUM.
Extensive evidence was led to the effect that it was recognised
that NUM had to build and maintain strong branches which can
effectively
operate in the various regions.
[4]
On 15 February 2010 a letter was sent to
all staff members of NUM informing them of the process of
re-designing the organisational
structure of NUM. Staff members were
informed that the process will commence on 22 February 2010 and were
also advised of a schedule
during which the restructuring would be
discussed. The first meeting was to be held on 19 February 2010. In
this letter the various
challenges faced by the organisation as well
as the objective of the re-assessment of the organisational structure
are set out.
[5]
It is common cause that various meetings
were held with employees of NUM. It is in dispute whether the
applicant knew of the meetings
and if he did what his attitude
towards these meetings was. It should be pointed out that the
applicant was included in an e-mail
dated 10 June 2010 inviting him
to an individual interview. According to the schedule attached to the
e-mail the applicant’s
interview was to have taken place on 15
June 2010. I will deal with the evidence and my conclusions in
this regard herein
below. Suffice to state at this stage that I am
satisfied on the evidence that the applicant knew about the
investigation conducted
by the Consultants into the existing
organisational structure of NUM. The investigation started early in
2010 and culminated in
a section 189(3) notice only issued on 23
March 2011.
[6]
The evidence on behalf of NUM was that
various workshops were conducted dealing with issues arising from the
proposed organisational
structure. Following extensive consultations
the Consultants concluded that there were various aspects of the
existing structure
that were not linked to the core competencies or
processes of NUM and that a more refined structure was required to
ensure optimum
service delivery. It was also concluded that in light
of the fact that NUM’s primary focus is on service delivery and
membership,
any structure developed should talk to the core
processes. In other words, there should be a direct relationship
between the structure
and the core processes. The following was also
communicated to the applicant in the section 189(3) notice dated 23
March 2011:
“
3.
As a result of the above mentioned analysis [referring to the
proposals of the consultants], it became apparent that there are
various aspects of the NUM’s existing organisational structure
that are not linked to the core competencies or processes
of the NUM
and that a refined structure is required to ensure optimum service
delivery.
4. The primary focus of
the NUM is service delivery and membership development and, to
facilitate a successful organisation, it
is necessary for the
organisational structure to talk directly to the core processes –
there should be a direct relationship
between the structure and the
core processes As a result, the NUM NEC has approved a new
organisational structure which entails
a streamlining of the existing
structure, removing areas of duplications and redundancy and
deploying duplicated resources to existing
positions to achieve
effectiveness and efficiency, including reducing costs where
possible.
5. As a result of the
above, the NUM’s new organisational structure which (sic) does
not have a Media Research Officer. The
NUM is accordingly proposing
eliminating this position as we do not believe that there is
sufficient work to justify this position
and at this level and
further, that this position does not form part of the core processes
and functions as the NUM.”
[7]
The Consultants proposed a new
organisational structure which was approved by the National Executive
Committee (“NEC”)
on 27 November 2010. I have already
referred to the fact that this report was comprehensive and sets out
the rationale for the
changes and the processes followed.
[8]
The old structure consisted of various
so-called “pillars”. If regard is had to the new proposed
structure and the evidence,
it appears that the organisational
restructure affected many employees within the existing pillars. Some
employees were downgraded,
others were laterally transferred and
three employees’ (including the applicant) positions were
identified as potentially
redundant.
[9]
On 23 March 2011 the applicant was provided
with a section 189(3) notice in terms of which the applicant was
invited to commence
consultations with the respondent on 5 April
2011. Prior to this date the applicant wrote a letter to NUM
confirming his attendance
on 5 April 2011 but requested certain
information. The meeting on 5 April 2011 did not take place. From
this letter it is clear
that the applicant was aware of the fact that
consultations had to take place and that he was aware of the purpose
thereof. He
also states in this letter that he has been subjected to
personal harassment because of his association with the Mkhonto
We-Sizwe
Military Veteran Association.
[10]
On 27 May 2011 NUM addressed a letter to
the applicant in terms of which the applicant was advised that the
meeting scheduled for
5 April 2011 had been postponed to 22 June
2011. The applicant was also advised that the information that he
requested would be
made available at the meeting.
[11]
The meeting of 22 June 2011 was again
postponed to 1 July 2011. On 25 June 2011 the applicant addressed a
letter in which he requested
certain information. He also made it
clear in this letter that he will not participate in consultation
meetings unless he receives
the information in writing. He
,
inter alia
, requested the NUM HR Policy
and insists that the one was given he was given should have been
signed by the National Office Bearers.
In respect of the Century Pay
Solutions Group Report, the applicant stated that the document did
not help him as the document was
not signed by the National Office
Bearers. The applicant ends the letter by stating that he will not
attend any meetings prior
to him receiving a written response to his
queries.
[12]
On
1 July 2011 a consultation meeting took place between the applicant
and Ms Martha Llale who is NUM’s Employee Relations
and
Compliance Unit Head. According to the minutes of the meeting
(although disputed by the applicant), he was given the restructuring
report. He thereafter addressed a letter to Mr Frans Baleni (the
current General Secretary of NUM) complaining of the fact that
he did
not receive all the information that he had requested. On 8 July 2011
the applicant addressed a further letter to Ms Llale
stating that he
did not agree with the minutes of the meeting, in this letter he
further complained about the outstanding information.
He, however,
acknowledges that he did receive the September 2010 report compiled
by the Consultants and that he did receive the
HR policies.
[13]
NUM
responded on 19 September 2011 with a letter providing other
information required by the applicant. The letter, however, makes
it
clear that much of the information requested by the applicant had
already been included in the section 189(3) notice. The letter
also
points out with regard to the vacant positions that all positions
were advertised and that employees were invited to apply.
More in
particular it is pointed out in the letter that the Media Research
Officer position was phased out in 2006 and that the
position did not
exist in the current organisational structure. In this letter the
applicant is again invited to make suggestions
to avoid his proposed
retrenchment. The applicant was also specifically informed that the
new organisational structure was approved
by the NEC and that
consultations could only commence after the new structure has been
approved.
[14]
On 30 September 2011 the applicant
responded to this letter. In his letter, he reiterated the fact that
he was still not in a position
to consult meaningfully. He insisted
that he was not placed in possession of a document setting out the
rationale for the restructuring.
In this letter the applicant also
stated that he noticed that since the letter of 23 march 2011 “
a
barrage of positions were advertised. Not one of those was offered to
me. I wonder why such an obvious measure to void my dismissal
was not
considered. I am open to discussions with regard to offer of
alternative employment as I always have been as the record
will bear
me out.”
In this letter the
applicant also threatened NUM with a referral in terms of section 16
of the LRA. It is common cause that the
applicant never referred such
a dispute to the CCMA. There is also no evidence before the Court
that the applicant ever applied
for these positions despite, on his
own admission, having been aware of the positions that were
advertised.
[15]
On 18 October 2011 - approximately 6 months
after the section 189(3) notice was issued - the applicant received a
letter informing
him of his retrenchment.
What information was
made available to the applicant?
[16]
It is not in dispute that the applicant was
given the consultant’s report which was approved by the NEC on
27 November 2010.
The Project Reportt on Proposed Structure Options
dated 20 September 2010 is a comprehensive report of 51 pages setting
out in
detail,
inter alia
,
the rationale for the various options provided. The report also set
out in detail why the existing organisational structure of
NUM was no
longer viable and also set out the process followed in identifying
the core skills required by NUM.
[17]
On 29 June 2011 the applicant was given the
minutes of the NEC meeting of 27 November 2010 wherein the
organisational structure
was approved. On 30 June 2010 the applicant
was also given the HR policies of NUM. On 19 September 2011 the
applicant was provided
with additional information including, the
number of employees transferred, promoted and recruited during the
restructuring process;
an explanation in relation to the request for
the job description of the Media Research Officer; the number of
employees dismissed
for operational requirements in the preceding
twelve months, the avoidance measures directed towards ensuring that
all possible
alternatives to dismissal are explored. The applicant
was therefore placed in a position to consult. All the information he
needed
was contained in this report.
[18]
The applicant was again invited to attend a
further consultation meeting on 30 September 2011. Prior to this
meeting the applicant
addressed a letter to NUM stating,
inter
alia
, that he had still not yet been
placed in a meaningful position to achieve joint consensus with NUM.
He again sought further information.
The applicant did not attend the
meeting on 30 September 2011 as he submitted a sick note for that day
and did not report for duty.
[19]
The applicant was informed on 18 October
2011 of the termination of his employment which would be effective as
from 31 October 2011.
At the time of this dismissal his gross monthly
earrings were R 15 695.40.
Substantive fairness
[20]
Detailed
evidence was tendered on behalf of NUM regarding the retrenchment
process. What is clear from the evidence is the fact
that the process
of restructuring NUM was a process undertaken with the assistance of
a consultant and bearing in mind the objectives
of the organisation.
I am in agreement with the submission that on the whole, the
applicant did not seriously gainsay the rationale
for the
restructuring project. The process of restructuring took months to
complete and took place in consultation with employees
of NUM and
more in particular with the Pillar Heads who bear the responsibility
of those employees falling within their pillars.
The proposals
contained in the final report were also formally accepted by the NEC
of NUM. In brief, there is nothing before this
Court which warranted
interference by the Court. Having said this, I am also mindful of the
now well-established principle that
it is not for this Court to
second-guess the business or commercial efficacy of the rationale for
the restructuring process. See
in this regard:
SA
Clothing and Textile Workers Union and Others v Discreto-A
Division of Trump and Springbok Holdings
[2]
“
The
function of a court in scrutinising the consultation process is not
to second-guess the commercial or business efficacy of the
employer’s
ultimate decision . . . but to pass judgment on whether the ultimate
decision arrived at was genuine and not merely
a sham . . . It is
important to note that when determining the rationality of the
employer’s ultimate decision . . . it is
not the court’s
function to decide whether it was the best decision under the
circumstances, but only whether it was a rational
commercial or
operational decision, properly taking into account what emerged
during the consultation process”.
[21]
At issue in this matter is whether the
applicant’s position was redundant: There is a long history to
this dispute. The applicant
commenced employment with NUM on 1 March
1993 as a “Photographer/Journalist”. In 1996 he requested
to be transferred
to the Kimberly Region to work as an organizer. The
request was denied. The applicant thereafter worked as an organiser
from 1996
to 2006. He again requested to be transferred back to Head
Office because of health reasons. He was then appointed as Media
Research
Officer with effect from 7 August 2006. According to NUM the
applicant is not in a position to gainsay the redundancy of his
position
for the following reasons: Firstly, according to the
applicant’s own evidence he did not perform the functions of a
Media Research Officer because he did not have a job description. He
further testified that he did nothing from 2006 until his
retrenchment on 31 October 2011. The applicant’s own evidence
is supported by the evidence of Ms Kekana (NUM’s Secretariat
Pillar Head) who testified that when she joined NUM in 2008 she also
tried to understand what job the applicant actually did. She
gave the
applicant a job description which contained photography functions.
The applicant was not interested and insisted that
he had a letter of
appointment stating that he was a Media Research Officer.
[22]
Although the applicant was adamant that he
never had a job description, the fact remains that, on his own
version, he did not perform
any functions whether as a Media Research
Officer or as a photographer until his retrenchment. He was given an
opportunity to discuss
his job description / functions during the
consultation process conducted by the consultants which culminated in
the issuing of
the section 189 retrenchment notice. As will be
pointed out herein below, the applicant did not attend such a meeting
thereby forfeiting
a valuable opportunity to establish what he
actually did at NUM (although his own evidence was that he did not do
anything).
[23]
It is necessary to deal with the allegation
made on behalf of the applicant to the effect that the position of
the applicant could
never have been part of the retrenchment exercise
in light of the fact that his position (Media Research Officer) was
made redundant
as far back as 2006 and therefore the position did not
exist. In essence it was submitted on behalf of the applicant that it
was
not possible to declare a position redundant if it never existed
in the first place. This is nonsensical. The fact of the matter
is
that a so-called “warm body” was on the payroll and who,
by his own admission, did not do any work. On what basis
in law can
it then be argued that NUM does not have the right to declare
redundant a position which does not exist?
[24]
In light of the aforegoing, I am satisfied
that NUM had a valid economic rationale to retrench and furthermore
that the applicant’s
position was redundant even on his own
version.
Was dismissal the fair
in the circumstances Were there other alternatives available?
[25]
It is accepted that an employer has an obligation to avoid dismissal
on the basis of operational requirement. This much was confirmed
by
the Labour Appeal Court in
South
African Airways v Bogopa and Others
[3]
.
The
highlight of the applicant’s version was the fact that there
were positions available and that he ought to have
been appointed to
these newly created and/or vacant positions. Firstly, in respect of
the vacant positions, the applicant for the
first time in
re-examination made reference to such positions. This was not put to
any of the witnesses of NUM. What is, however
clear from the evidence
is the fact that some employees were laterally transferred and some
employees were downgraded. This was
as a result of the proposals made
by the consultants. Three positions (including that of the applicant)
were identified as being
redundant. When the section 189 notice was
issued to the applicant he was alerted to the fact that there were no
vacancies and
that he should come up with alternatives. The
applicant, as will be indicated hereinbelow, did not participate
gainfully in the
consultation process.
[26]
Six new positions were created: (i) Marketing and Product
Development; (ii) Health and Safety Legal Advisor;
(iii) Branding and
Website Maintenance; (iv) Wellness Practitioner; (v) Membership
Helpdesk; and (vi) Women and Youth Coordinator.
The applicant
conceded in his evidence that he did not have the competency to
fulfil any of these positions. Moreover, Ms Morodi
also explained in
her evidence that the restructuring process included the compilation
of a competency framework which looked into
the competencies of all
employees at NUM and that the applicant was included in this process.
She explained that the new positions
required specific competencies
which the applicant did not have. It was conceded on behalf of NUM
that Ms Morodi was not aware
of the fact that the applicant had
certain Trade Union Development Program qualifications. However, as
will be pointed out herein
below, the applicant never brought this to
the attention of NUM. Moreover, it is clear that the applicant was
aware of the fact
that there were positions advertised. He complains
that these positions were not offered to him. However, he conceded
that in terms
of NUM’s policies, positions were not offered to
employees and that when positions were advertised he was at liberty
to apply.
Moreover, it should also be pointed out that the applicant
conceded that he did not have the necessary qualifications to fulfil
any of these positions. The Applicant testified that he had the
following qualifications: (a) Standard 10; (b) a Trade Union
Development
Program: Leading and Managing; (c) a Trade Union
Development Program: Organizing; (d) a Trade Union Development
Program: Labour
Law. The evidence was that the new positions
were all specialized positions which required specific competencies
and skills
set: for example: the Health and Safety Legal Advisor
position required a person with legal background and the Wellness
Practitioner
position required a person with a social worker and EAP
background.
[27] In the
event I am in agreement that there were no suitable alternatives to
the applicant’s retrenchment and
that the retrenchment was
accordingly fair.
Procedural fairness
[28] It is
accepted that the duties created by section 189 of the LRA is
reciprocal: The employer’s duty to consult
has the correlative
duty on the employee to co-operate in an attempt to reach consensus
before the employer takes a final decision
on whether to retrench or
whether it is in a position to take a decision which will result in
the avoidance of retrenchment.
[29] In all
retrenchment cases it is important to consider whether the employer
has fulfilled its obligations in terms
of section 189 of the LRA. In
this particular matter it is also necessary to consider whether the
employee had fulfilled his obligations
in terms of the consultation
process as it was submitted on behalf of NUM that the applicant
frustrated the process by refusing
to consult in the spirit of the
LRA and by deliberately delaying the process.
[30] It was
submitted on behalf of NUM that the applicant had failed in his
correlative duty to co-operate with NUM
in an attempt to reach
consensus before NUM took a decision to retrench. It was also
submitted that the applicant had by his actions
deliberately delayed
and frustrated the process and that NUM was therefore not solely to
blame in not achieving the kind of consultation
required by section
189 of the LRA. The facts relied upon are the following: The
applicant tried his best to convince this Court
that he was totally
oblivious to the entire restructuring project until he received the
Consultant’s Report (which would
have been in June 2011). This
cannot be true in light of the following: On 9 and 10 June 2010 the
applicant was invited by e-mail
(addressed to him) to an individual
meeting with the consultant with the aim of aligning his job
description to the organisational
strategy. This much is clear from
the fact that an e-mail was addressed to the applicant. Yet it was
the applicant’s evidence
that he did not receive the e-mail.
Then the applicant conceded that he was aware of the individual
interview but that he decided
not to participate because he did not
have a job description. Yet he did not attend the interview with the
consultant which would
have clarified what his job description was.
On the next day of his cross-examination, the applicant, clearly
having thought of
an explanation as to why he did not receive the
e-mail inviting him to the meeting on 9 and 10 June, suddenly came up
with the
bizarre version that his computer was seized from him in
2010 and therefore he was without a computer for a whole year. Apart
from
the fact that it is inconceivable that this would have happened
without the applicant complaining (of which there is no evidence),
this version was never put to any of NUM’s witnesses and only
emerged in cross-examination. The applicant’s explanation
was that he had forgotten about this yet he was able to recall events
as far back as 2009.
[31] I am
therefore satisfied on the evidence, and on a balance of
probabilities that the applicant must have known
about the
restructuring processes throughout 2010. It is inconceivable that the
applicant did not know as this was clearly a major
event in the
offices of NUM. Outside consultants were employed who conducted
interviews over a number of months. Furthermore, the
applicant was,
on his own version, always at the offices from 8H00 – 17H00
(except when he was ill). Various communications
were sent to the
staff – including the applicant. On 15 February 2014 for
example, a communiqué was sent to all NUM
Staff advising them
of the “organizational re-design process”. Issues such as
existing processes within the Pillars
are addressed. There was also a
discussion around job profiles and to which the applicant was invited
but did not attend.
[32] Also
damning is the evidence of Ms Kekana who testified that she had
various meetings with employees within her
Pillars and that the
applicant was also invited. During these meetings she gave feedback
and information regarding the process.
[33] Against
this background it is inexplicable why the applicant insisted that he
was not placed in a meaningful position
to consult because he was
provided with sufficient information. He even threatened NUM with a
section 16 of the LRA referral, which
never materialised. According
to NUM all the information needed to consult was provided to the
applicant, yet he still maintained
his stance that he could not
consult. Most importantly he was provided with the consultant’s
report in June 2011. He was
already provided with the section 189(3)
notice and the project report which was approved by the NEC on 27
November 2010. The selection
criteria and the avoidance measures and
the pre-termination consultations are dealt with in the section
189(3) letter and in the
letter to the applicant on 19 September
2011. The applicant was also furnished with the HR Policies of NUM.
[34] Yet,
despite the aforegoing the applicant was still alleging on 30
September 2011 – six months into the consultation
process –
that he was not placed in a position to meaningfully consult with
NUM.
[35] I am
therefore in agreement with the submission on behalf of NUM that the
applicant was the one who frustrated
the process and that he was
intent on prolonging the consultation process. This fixation on
constantly obtaining additional information
also explains why the
consultation meeting on 1 July 2011 (with Ms Llale) was unsuccessful.
It was her evidence that the applicant
was not interested in
discussing the proposals set out in the section 189(3) notice but was
still insisting on being furnished
with additional information
notwithstanding the fact that the applicant was, at that stage
already in possession of the consultant’s
report, the HR
policies, the minutes of the NEC’s approval of the
organisational structure, the rationale for the restructuring
and the
proposed avoidance measures. I am therefore in agreement with the
submission that, at the very least on 1 July 2011, the
applicant was
in a position to meaningfully consult but that he, by persisting with
his demands for further information, intently
delayed the process.
[36] I am in
agreement that the applicant’s constant insistence on
requesting further information must also be
seen against the
background of his evidence which revealed a deep seated distrust of
the leadership of NUM. He for example testified
that Mr Gwede
Mantashe (the former General Secretary of NUM) struggled for years to
get rid of him. He also alleged that Mr Baleni
said that he will get
rid of the him – a further version never put to any of NUM’s
witnesses. He also said that he
cannot trust Mr Baleni and others at
NUM. In this regard the applicant explained that he was harassed
because he was a member of
Mkhonto We-Sizwe Military Veterans
Association.
[37] In light
of the aforegoing I am therefore in agreement that the dismissal of
the applicant was procedurally fair.
NUM, in my view, endeavoured to
consult with the applicant but was hampered by the dilatory tactics
of the applicant. In fact,
if regard is had to the evidence it is
clear that the applicant had no intention to engage with NUM in an
effort to reach consensus
over the need to retrench.
[38]
In the event the dismissal of the applicant was substantively and
procedurally fair. I have in the interest of fairness decided
not to
make an order as to costs.
Order:
[39] I make the following
order:
39.1 The dismissal of the
applicant was substantively and procedurally fair.
39.2
There is no order as to costs.
_______________________
AC BASSON J
Judge of the Labour
Court
Appearances
For
the applicant : Mr Moshoana of
Mohlaba & Moshoana Incorporated
For
the respondent: Mr Itayi Gwaunza of Edward Nathan Sonnenbergs
Attorneys
[1]
Act
66 of 1996.
[2]
[1998]
19 ILJ 1451 (LAC) at 1452 E.
[3]
(2007)
28 ILJ 2718 (LAC):
“
[60]
The question which arises is what the obligation of an employer is
in relation to the dismissal of employees for operational
requirements when it does away with an old structure and adopts a
new structure (for operational requirements). An employer has
an
obligation to try to avoid the dismissal of an employee for
operational requirements. This obligation entails that an employer
may not dismiss an employee for operational requirements when such
employer has a vacant position the duties of which the employee
concerned can perform with or without at least minimal training.
This court affirmed this principle in its decision in
General
Food Industries Ltd t/a Blue Ribbon Bakeries v FAWU and others
(2004)
25 ILJ 1655
(LAC
)
and in
Oosthuizen
v Telkom SA Ltd
(2007)
28 ILJ 2531
(LAC)
handed down on 29 June 2007. Where the employer has a vacancy and
the employee can perform the duties attached to that vacancy,
the
employer would be acting unfairly in dismissing the employee without
offering the employee such a position and the ensuing
dismissal
would be without a fair reason. Where, however, the employer offers
the employee such a vacant position and the employee,
having
accepted the offer, fails to perform the duties attached to that
position satisfactorily, the employer can deal with the
case as a
case of poor performance.”