About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2014
>>
[2014] ZALCCT 13
|
|
Heyns v Care Cross Health Proprietary Limited (C576/12) [2014] ZALCCT 13 (15 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
no: C576/12
In
the matter between:
JOHANNA
BOUWER
HEYNS
................................................................................
Applicant
and
CARE
CROSS HEALTH PROPRIETARY
LIMITED
.......................................
Respondent
Date
heard: 18-21 November 2013
Date
delivered: 15 April 2014
Summary:
Unfair retrenchment claim
JUDGMENT
Rabkin-Naicker
J
[1]
Johanna Bouwer Heyns’ (Heyns) employment with the respondent
company (the company) ended on the 10 May 2012. She was employed
as a
General Practitioner Network Administrator on the 1 October 2007. She
was subsequently promoted to the position of Client
Relationship
Manager (“CRM”), a position she held until the
termination of her employment. Heyns claimed that she was
unfairly
retrenched and in the alternative that her dismissal was
automatically unfair. The latter claim was not pursued in these
proceedings.
Evidence
before court
[2]
The Human Resources Manager of the company Renee Niske (Niske)
testified that on 17 February 2012, Heyns was notified in writing
that the company intended restructuring the Client Management
Division and envisaged retrenching one person. The letter headed
“section 189(3) Notice of intention to retrench” cited
two reasons for the need to restructure. These were the need
to
reduce costs due to the loss of customers and the flattening of
sales, and the need to up sell into current customers more
aggressively. The letter was sent to all three CRMs. She stated that
at that stage the company did not know which one of the three
would
need to go. The letter stated that the newly structured position of
CRM would include the requirement of a valid driver’s
license
which Heyns did not have.
[3]
An extensive letter signed by Heyns was written in response to the
notification. The statement of case summarises the
main points
of the letter as follows:
“…
in
her correspondence the Applicant requested information and stated,
amongst others, that the Respondent’s:
4.8.1
intended course of action was inconsistent with its recent conduct
and discussions that had already taken place within the
department;
4.8.2
stated course of action was not consistent with the needs and
circumstances within the client management division;
4.8.3
criteria for the new so called client relationship manager post was
inconsistent with the requirements of the post she had
fulfilled
successfully for a substantial period of time and in particular that
the requirement of a driver license was not required
nor had it
impeded her performance.”
[4]
Niske testified that she had drafted a letter in reply dated the 29
February 2012 which read in part as follows:
“
No
final decision to restructure has been taken by the company; we are
currently busy consulting staff on the possible restructuring
[process. You are referred to point number .2 in the Section 189(3)
whereby the new envisaged structure is contemplated to be implemented
as of 17 March 2012…..
The
Company has not performed well financially. The aforegoing has
necessitated management reviewing all aspects of its business
in
order to improve revenue and to reduce costs. One of these measures
is directed at ensuring that we do not carry excess staff
numbers and
eliminating spare capacity. In assessing our staff requirements under
the financial constraints within which we operate,
we have reviewed
each position in the organization including the position which you
currently fulfill. The company is considering
whether your position
can be viewed as “spare capacity” and would accordingly
like to consult with you in that regard.
The “spare capacity”
is a direct result of the contemplated envisaged restructuring of the
“Client Relationship
Manager” position….
It
has not been an operational requirement previously to have a valid
driver’s license. In the newly envisaged ‘Client
Relationship Manager’ position it is an operational requirement
for the employee to be in possession of a valid driver’s
license. This is not the only requirement. As stated in the Section
189(3) notice under point no.2, the company envisages the new
Client
Relationship Department to be in operation as of the 17 March 2012.
By this date the two employees functioning in this position
must have
a valid driver’s license.”
[5]
Consultation sessions were held on the 17 and 21 February 2012. Niske
testified that the minutes of these were taken verbatim.
Heyns stated
at the first of these meetings that her situation is an automatic
disqualification as she does not have a driver’s
license and
that this is unfair labour practice, and that she would get her own
legal advice. The minutes of the second meeting
record that only
Heyns indicated that she did not understand the skillset required of
the restructured position. Regarding alternatives
to retrenchment,
Heyns stated she would like to deal with this in an individual
consultation session. As to the selection criteria
proposed which was
set out in the 189 Notice as “skills, experience, knowledge and
qualification” Heyns was the only
one of the three employees
who did not state she agreed with these. Niske testified that the
company agreed to individually consult
with Heyns.
[6]
A further letter was written by Heyns to the company on 9 March 2012
which was written to the Managing Director. The letter
included the
following:
“
As
far as the role I have performed is concerned I would again reiterate
my request for information as set out in pg2 , par 3 of
my earlier
letter. Ms Niske concedes that it was never an operational
requirement that I require a driver’s license yet provides
me
with no answer or information in respect of the reasonable request to
know:
1.
The reasons for the inclusion of this criteria;
2.
When the criteria necessary for the post was reconsidered, by whom
and the reasons for deciding that it was necessary.
I
have expressed concern that since this criterion places me at a
disadvantage in this process that I am prepared to undertake the
appropriate course and process to procure a license”.”
[7]
On the 19 March 2012, in reply Niske wrote as follows:
“
It
is very much an operational requirement to have a valid driver’s
license for the position of ‘Client Relationship
Manager’
in the newly envisaged restructured position. The reason being Client
Relationship Managers need to be independent
in travelling to see
their clients locally and elsewhere in South Africa.
Management
has considered this to be an operational requirement for the position
for the reasons advanced above.
The
company welcomes your eagerness to be able to obtain your driver’s
license. Please bear in mind that the company foresees
the
implementation of the newly ‘Client Relationship Manager’
position to be effective as of 19 March 2012, although
due to our
correspondence and your request for individual correspondence and/or
consultation, this date has now moved to 31 March
2012 in order to
accommodate your individual request Therefore you must have the valid
driver’s license by this date.”
[8]
Following a lengthy further letter signed by Heyns to the company,
questioning the rationale of the need to abolish one post,
Niske
testified that a letter was written to Heyns on the 29 March 2012
which read in part as follows:
“
The
company takes note of your submissions made in the letter. Currently,
the company will not be responding in detail to your submissions
made
and the company reserves the right to respond to submissions made in
your letter in the future and the company’s current
failure to
respond to your submission is in no way to be construed as agreement
with your submissions.
Management
has made the decision not to make one “Client Relationship
Manager’ position redundant and going forward
the company will
retain all three ‘Client Relationship Managers’
positions.
The
position of ‘Client Relationship Manager’ position is
still envisaged to be restructured for the same reasons advanced
to
you in previous correspondence.”.
[9]
Niske testified that the decision was taken not to make one position
redundant as part of the consultative process. On the 3
April 2012,
Heyns was presented with a new employment contract and told to sign
it, as were the other two employees. All three
had previously been
required to attend an interview. On 4 April 2012 Niske testified that
she sent the following email to Heyns:
“
You
requested to have a copy of your interview results yesterday. As
discussed with you, we will provide this to you. I will provide
you
with one from each panel member……The interview results
will give you some insight into where we have identified
your skills
gaps.
We
did request you and your colleagues to hand in your signed contract,
KPA profile and job profile by Thursday to appoint you into
your new
roles. I further confirm to you, since our meeting yesterday, that
the company is willing to assist you in addressing
your skills gaps
over the next three months by means of external training and/or on
the job training so that you can perform your
duties. A meeting will
be set up with you to discuss the necessary training you will need,
and a schedule drawn up for you to receive
the training.”
[10]
Niske testified that Heyns had concerns re the sales component of the
position. She stated that the other two employees had
also been
offered training and support for upskilling. She informed Heyns that
she must sign the contract and KPA’s. She
received a copy of a
letter dated the 10 April 2012 which Heyns had written to the
Managing Director which read in part as follows:
“
I
have now been subsequently informed, in a letter dated 29 March 2012,
that the Company has decided to abandon its original intentions
of
making redundant one Client Relationship Manager’s (“CRM”)
position. However, I have now been informed that
in the absence of
signing a new employment contract which changes material terms of my
employment that I will be retrenched No
meaningful or proper reasons
where (sic) given to me for the Company’s abrupt decision to
abandon the retrenchment process
and I have motivated since the start
that the process was uncalled for and unwarranted. No acceptable
reasons have been provided
justifying the instruction I received from
HR today that I must sign before 11 April or the process of
retrenchment would continue
and I would be retrenched. I see no
reason why I should sign a new employment contract.”
[11]
Niske testified that a meeting was called for the 13 April 2012
attended by herself and a Mr. Grobler of Labournet where Heyns
refused to sign the contract. Heyns was then called to a meeting on
the 20 April with her line manager and Niske where further
attempts
were made to resolve the issues. According to Niske the meeting was
difficult to conduct and Heyns interrupted her and
her line manager
numerous times. In an email dated 20 April after the meeting
Niske outlined her views regarding what she
viewed as aggressive
behavior by Heyns The email also stated the following:
“
Basically,
we are now at this point:
We
have decided to retain all 3 CRM’s
We
are still restructuring the position
You
insist only one KPA has changed
We
explained to you that while one KPA has changed, you are now
expected to take sole responsibility in managing your clients
all
the details of which were explained to you and appear on the Job
Profile
It
was again explained that we will set about doing internal and
external training according to individual needs in the department
You
raised the point of knowledge transfer. We stated that yes that will
occur. You stated that you wanted everything in triplicate
and
written down. We explained that it is not possible to write down
everything in Zaid’s head and that you will be given
knowledge
transfer and will have to take the initiative to take notes during
these sessions.
What
is of great concern right now is that on the one hand you insist
nothing has changed. On the other hand you state that you
have had no
exposure to some of the KPA’s and the requirements thereof. We
stated that in the past you have played a supportive
role and that
now you will be taking independent control of your clients. We have
offered to support you by upskilling you, yet
you appear resistant.
For example, you suggested that instead of getting a drivers license
you will have a designated driver. We
handed you a written
undertaking at your suggestion in the last consultation and today you
stated it was not your suggestion, it
was merely your “opinion”…
You
have also been aware that you have needed to address your driver’s
license since 17 February 2012. As you mentioned in
your interview,
you have already applied for your learner’s license two to
three weeks ago. Please be advised that your position
requires you to
have a valid driver’s license within 3 months from the date of
appointment, being 02 April 2012, as per the
job profile you received
with your contract.”
[12]
Heyns was given until Tuesday 24 April 2014 to sign a written
undertaking regarding the requirement to travel; agreement to
the job
description and job profile and the KPAs and how they will be
measured.
[13]
Niske testified that she subsequently informed Heyns that Labournet
would now be managing the consultations because the process
was being
clouded by the matter becoming personal. By the 3 May 2012, Heyns was
asked to sign a written undertaking to obtain her
license by 31
December 2012 and that before that to commit that “you will be
able to travel to your clients within normal
time frames, not
dependent upon the availability of your designated driver. Business
travel includes national as well as local
travelling.” Heyns
did not sign or return any documents to the company. Niske stated
that if she had done so she would have
retained her job. However,
Heyns was given a letter confirming “that the agreed outcome of
the consultations is retrenchment”
and paid severance monies as
well as one month’s salary in lieu of notice.
[14]
Under cross-examination it was put to Niske that it had never been an
operational requirement to have a driver’s license
and that
Heyns had managed without one for 5 years. She stated that it was
clear that the company needed more face time with the
clients and
CRMs needed to travel extensively to upsell and generate more
revenue. She insisted that the company had been very
accommodating
and did not change track on the redundancy because the questions
Heyns had raised put it in trouble. She denied the
reasons for the
alleged restructuring were a fabrication. Under re-examination Niske
was asked when the new restructured position
became operative She
stated that the appointment to the position was on the 2 April 2012.
[15]
The next witness for the company Mr Thomas Walker (Walker) gave
evidence on the rationale for the restructuring of the business.
As
will be apparent in the evaluation of this case it is not necessary
to traverse his evidence.
[16]
Heyns testified that she started at the company in October 2007 and
was originally a network administrator. Her job was to
liaise with
GPs and sign them up and do compliance work. After her promotion to
CRM her functions involved contract management
with a limited number
of clients. She had to attend operational and trustee meetings with
these clients The operational meetings
were on a pre-arranged monthly
basis. The trustee meetings were scheduled quarterly at the beginning
of the year. She engaged with
the clients fully and she had never had
a problem getting a driver and getting to them. If requests
from a client came in,
a meeting could be set down for the next day.
On a monthly basis she went to meetings with clients and on the
alternate month they
would come to meet with her. They had never been
a case where they would telephone and expect her there the next day.
She said
she had an unblemished record and got bonuses regularly.
[17]
There was no talk of a driver’s license when she was appointed.
She stated that it was common knowledge in the company
that she had a
fear of driving and that her family had been killed in a car
accident. She believed the retrenchment process was
a sham from the
start and that her raising questions about the retrenchment led the
company to take a different route.
[18]
Regarding the signing of a new contract of employment, she testified
that she said she could not sign because there were material
differences to the current terms. She stated that Niske had told her
that if she didn't sign she would be retrenched. The company
had
later said she no longer had to sign the employment contract. It was
true that severance pay had been discussed at the last
meeting with
the company. She was feeling hammered at that meeting and she
testified that they said if she settled for two weeks
I would get a
good reference. On 10 May 2012, she was told that if she didn't sign
the written undertaking she would be retrenched.
She did not agree
that the outcome of the consultations was a retrenchment and was
unable to say goodbye to any of her colleagues
and escorted out of
the building. She testified that after the termination of her
employment she had not found alternative employment.
She had had to
sell her flat and cancel retirement annuities she had been paying for
30 years and had lost 200,000 Rand on her
retirement annuity with
Sanlam. She had worked in an art gallery from time to time earning
about 5000 Rand a month. This had been
her job for about five months.
She stated there was no reason from the start to make one position
redundant, knowing that she couldn't
drive and putting this in as a
requirement, and then forcing her to sign an undertaking which she
couldn't fulfill. She also said
that they didn't give her an
opportunity to prove she could do the job. She asked the court for
monetary compensation.
[19]
Heynes was asked under cross-examination whether it was her case that
the entire restructuring was fabricated to get rid of
her. She stated
yes. She conceded that the company was entitled from time to time to
reassess the CRM position and to change it
if it deems necessary. She
further conceded that Walker was entitled to make a decision on a new
conspectus of the position. She
confirmed that the lengthy letters
written to the company were drafted by her attorney. It was put to
her that her belligerent
attitude was a problem to the company and in
the end they conceded on not dropping one position. She agreed they
conceded.
[20]
Heynes agreed she had undertaken to get the license and that she had
never said that the license requirement was a deliberate
design to
get rid of her. She agreed that the company had given her an
additional three months after the end of March to get her
license,
and then they gave her up until the end of December 2012. She said
she would have signed the undertaking if the point
of obtaining a
driver’s license by 31st December was not part of it. It was
put to her that in conclusion Mr Walker had testified
that all that
she needed to do was to sign the three undertakings and that she
would still have a job. She said she agreed.
Evaluation
[21]
This case has certain unique features because of the fact that Heynes
had an attorney advising her (pro bono) throughout the
process. As a
result of this and for whatever motivation the company did make a
number of concessions after it had embarked on
a section 189 process.
These included the decision not to make a post redundant of the three
CRMs. Once the decision was made not
to make any posts redundant,
objectively speaking the section 189 process came to an end.
[22]
What followed was a lengthy process aimed at convincing Heyns to
agree to changes in her conditions of employment. In this
process the
company also displayed flexibility when it agreed not to make Heyns
sign a new contract of employment. Whatever the
motive for this was,
and whether it was because of the perceived threat of
litigation, is not material. The court has
to decide whether
her dismissal was substantively or procedurally unfair. The employer
has a prerogative to reassess the ambit
and skills needed in its
posts. On the evidence before court, Heyns was prepared to attend
courses to improve her skills
and was not in a position to
challenge the fact that these courses were offered to the other two
CRM employees.
[23]
The company clearly had a duty not to change Heynes terms and
conditions of employment unilaterally, without consultation.
They met
this duty. The fact that the company was flexible in the respect of
taking on board what they saw as a suggestion that
Haynes had made to
have her designated driver available at all times (a suggestion that
Heynes later called merely an ‘opinion’)
counters Heynes’
proposition that there was a plot to get her out of the company.
There is merit in Mr Snyman’s submissions
that Heynes was
resistant to changing the way that she had worked. It was clear on
her evidence that she did not see the necessity
for such change,
which she regarded as a sham, despite the fact that she conceded that
the company was entitled to relook at functions
such as those of the
CRMs.
[24]
The issue of the ostensible knowledge of the managers as to the fact
that she had a fear of driving because her family had
been killed in
a motor accident was never put to the company witnesses, nor was it
pleaded. In all the circumstances of this case,
I do not find that
the dismissal of Haynes was substantively or procedurally unfair.
There was no unilateral decision to change
her terms and conditions
of employment but an extended period of consultations ensued. That
the termination letter given to her
was still drafted in the mode of
a 189 process is neither here nor there. She benefited from this by
the inclusion of ‘severance’
payments in her termination
package. Heynes conceded she did discuss same. In my judgment, while
there can be no doubt that Haynes
deserves sympathy for what can be
described as a phobia of driving, the company has proved in these
proceedings that she was not
unfairly dismissed. I do not consider it
apposite to make a costs order in this matter based on the
jurisprudence of this court
in this respect. I make the following
order:
1.
The applicant’s claim is dismissed.
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant : Mr. Glen Marinus of Werksmans Inc
For
the Respondent: Mr. Sean Snyman of Snyman Attorneys