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[2014] ZALCCT 39
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Davidson v Down Syndrome Association, Western Cape (C296/2013) [2014] ZALCCT 39 (31 July 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
C296/2013
In the
matter between:
DOUGLAS
WILFRED
DAVIDSON
Applicant
and
DOWN
SYNDROME ASSOCIATION, WESTERN
CAPE
Respondent
Date
heard: April 22 2014
Delivered:
July 31 2014
Summary:
Unfair retrenchment claim
JUDGMENT
Rabkin-Naicker
J
[1]
In his referral to this court the applicant prays that his
retrenchment be declared an unfair dismissal and seeks compensation
equivalent to 12 months remuneration. He was employed by the
respondent, a non-profit organization, on 1 November 2009. On 1
February
2010, he was appointed on a permanent basis as regional
director.
[2]
The respondent (the Association) is a registered non-profit
organization with its main objectives being to:
*
provide and/or promote services for the care of persons with Down
syndrome;
*
provide a support function for parents, families and caregivers of
persons with Down syndrome;
*
Strive for positive cooperation with other organizations,
institutions,
government authorities (local, provincial and national)
and persons for the purposes of promoting the interest of the Down
Syndrome
Association of the Western Cape and creating public
awareness of persons with Down syndrome;
*
to generate and obtain funds to achieve main and secondary
objectives,
which include to establish a home facility to accommodate
adults with Down syndrome and support research in the field of Down
syndrome.
[3]
The Association is run by a management committee which is elected
every two years and consists of at least seven members who
are led by
office bearers selected as chairman, vice-chairman, treasurer and
secretary. The applicant pleads that during March
2012 he was
mandated to draft and compile a strategic plan in a drive to obtain
fundraising initiatives as the Association went
through a financial
crisis. He proceeded to propose a contingency plan in order to obtain
the necessary funds by means of fundraising
which plan he claims were
ignored by the interim management committee.
[4]
He pleads that as a result of this failure in September/October 2012,
he started a retrenchment process by virtue of article
6.1 3.3 of the
Association’s constitution with eight of respondent’s
employees. Applicant pleads that section 189 letters
were sent out to
the various employees and the consultative process was followed as
prescribed by the LRA. On 30 November 2012,
the applicant himself
received a certificate of service which confirmed that his employment
was terminated as a result of retrenchment
in terms of section 189 of
the LRA. Although the applicant was in charge of the retrenchment
process, he claims he was never given
formal notice of his proposed
retrenchment and was not consulted and was presented in effect with a
fait accompli.
[5]
The following facts, inter alia, are included in the pre-trial minute
as common cause:
5.1
In 2011 the respondent applied to the National Lottery Distribution
Trust Fund for funding
for the 2012 financial year. However, the
respondent failed to secure funding for that year.
5.2
The applicant was an ex-officio member of the management committee.
5.3
During March 2012 respondent mandated applicant to draft and compile
a six-month contingency
plan in a drive to obtain fundraising
initiatives as respondent at the time face financial difficulties due
to the fact that it
had not received any funding from the National
Lottery Distribution Trust Fund for 2012, which application for
funding was still
pending.
5.4
The contingency plan prepared by the applicant consisted of plan A:
"turnaround strategy
for financial stability" and to plan
B: "if turnaround strategy has failed – Retrenchment
Strategy".
5.5
In terms of the contingency plan, in the event that the respondent
was unable to secure
the required donor funding in terms of plan A,
the potential retrenchment of staff was considered as a means to
reduce the respondent’s
expenditure as set out in plan B.
5.6
During 2012, the respondent had a total staff complement of nine
employees, including the
applicant.
5.7
Of the nine employees employed by the respondent, three staff members
were involved with
the Umthi Project, an externally funded project
whose funding had been secured for a further period of two years.
5.8
During October 2012, the respondent commenced retrenchment
proceedings, as envisaged in terms
of
section 189
of the
Labour
Relations Act 66 of 1995
. The applicant managed this process and was
assisted by Nicola Arendse, an attorney working for Bagraims
Attorneys. It emerged
by virtue of applicant's proposal that:
(I) Applicant would manage the
retrenchment process in terms of
section 189
of the LRA 66 of 1995;
(ii)
Applicant commenced the proceedings on 25 October 2012, more fully
described in applicant
situational report;
(iii)
Applicant was directed by aforesaid Ms. Arendse, who was co-opted as
an MC member….
to comply with the prescripts stipulated in
terms of the extract from
section 189
of the LRA.
5.9
Notices of possible retrenchments as required in terms of section
189(3) of the Labour Relations
Act 66 of 1995 (“the LRA”)
were issued to 8 of the respondent’s employees on 25 October
2012.
5.10 The applicant,
as the regional director held consultations with the 8 affected staff
members of 25 October
2012.
5.11 On 2 November
2012 the applicant on behalf of the respondent issued five staff
members with notices of terminations.
5.12 The applicant
did not receive a notice of his retrenchment.
5.13 In terms of the
notice the employee’s final date of employment would be 30
November 2012.
5.14 Applicant
approved the November 2012 statutory payments of the affected staff.
The monthly approval of payments
is mandatory in terms of GAAP
(generally accepted accounting practice) and adherent to applicant’s
fiduciary duty.
5.15 Applicant’s
employment with the respondent was terminated on 30 November
2012.
Evaluation
[6]
Given the above common cause facts, and that the applicant did not
pursue his claim for substantively unfair retrenchment at
the
hearing, I highlight the issues regarding procedural fairness in this
judgment. From the testimony in court I note that the
applicant did
not receive an initial ‘intention of retrenchment letter’,
which he sent to the other employees. But
he did in fact sign receipt
of a letter of retrenchment, together with the other affected
employees on 2 November 2012. This was
conceded by him in
cross-examination and is indeed evidenced in documentary form in the
trial bundle. He also conceded that he
knew that this letter would be
issued to him; in fact, he put his name on the list of signatories
when he prepared the document.
The applicant, however, persisted in
his testimony to claim that he expected the management committee
members to come and consult
with him. He further testified that he
only realized that the procedure of his retrenchment had been
irregular, in that he was
not consulted with, when he went to the
CCMA. He agreed that he hadn't thought anything was wrong with the
November 2 retrenchment
letter he had signed at the time. Applicant
also agreed that when he prepared the retrenchment payments and
checked whether there
were sufficient funds, he included himself in
the said preparation.
[7]
Unusually, it is not necessary in this judgment to record the
evidence in summary of the respondent Association, which bears
the
onus to prove that the retrenchment was fair. This is because even on
applicant's own version there is no basis to find that
his
retrenchment was procedurally unfair. He was himself in charge of the
process of retrenchment and the architect of the strategy
of the
Association in this respect. He prepared for his own retrenchment and
included his own name on the list of retrenches. He
accepted his
final notice of retrenchment letter by signing next to his name.
[8]
From the evidence in court it was apparent that the applicant was
personally aggrieved by his treatment by certain members of
the
interim management committee of the Association given his hard work
in ensuring that his fiduciary duties were carried out.
However, he
simply did not have a case to bring to this Court and the proceedings
were in fact a waste of the Court's time. However,
I do take note
that the witnesses before me, including the applicant, were all
committed to the work of the Association and had
become involved in
its work due to the fact that they were parents of children with Down
Syndrome. Certain problems between the
members of the Association and
those on the management committee were the context in which the
applicant became personally aggrieved.
I mention this because I do
not intend to make a costs order in this matter.
[9]
In all the above circumstances I make the following order:
1. Applicant’s
claim is dismissed
_______________
H. Rabkin-Naicker
Judge of the Labour Court of South
Africa
Appearances:
Applicant: Visagie Vos Attorneys:
Respondent:
S. Adams Attorney