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[2014] ZALCPE 38
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Ketse v Telkom SA Soc Ltd and Others (P 400/14) [2014] ZALCPE 38; [2015] 4 BLLR 436 (LC); (2015) 36 ILJ 1592 (LC) (5 December 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
No: P 400/14
DATE:
05 DECEMBER 2014
Reportable
In
the matter between:
MZIMKULU
AMOS
KETSE
..........................................................................
Applicant
And
TELKOM
SA SOC
LTD
.....................................................................
First
Respondent
SOLIDARITY
................................................................................
Second
Respondent
SOUTH
AFRICAN COMUNICATION UNION
...............................
Third
Respondent
COMMUNICATION
WORKERS UNION
.....................................
Fourth
Respondent
Heard:
24 November 2014
Delivered:
5 December 2014
Summary:
An employer is not required to consult individual employees when
contemplating dismissing employees for operational requirements
when
there is a person or body the employer is require to consult in terms
of a collective agreement.
JUDGMENT
LALLIE
J
Introduction
[1]
The applicant brought this application on an urgent basis for an
order in the following terms:
‘
2.
Declaring the notice of termination of the applicant’s contract
of employment, given by the first respondent to the applicant
on 1
October 2014 to be invalid and of no force and effect.
3.
Reinstating the applicant into the employ of the first respondent
with fully retrospective effect to date of termination of employment.
4.
Requiring the first respondent to comply with the requirement of a
fair procedure and the provisions of
section 189
and
189A
of the
Labour Relations Act 66 of 1995
, as amended, prior to it being
entitled to terminate the applicant’s services.
5.
Interdicting and restraining the first respondent from appointing any
other employees into positions within the functional areas
of Human
Resources, Employee Relations or Call Centre Management until it has
complied with the provisions of paragraph 3 above.
6.
In the event of an order in terms of
section 189A
(13)(i) to (iii)
not being appropriate, awarding the applicant such compensation as
may be just and equitable under the circumstances’.
[2]
The application is opposed by the first respondent which raised the
following preliminary points:
‘
7.1
The applicant was not a consulting party as contemplated in
s189A
(13) of the LRA and lacks the
locus
standi
to bring this application. The
trade unions with members who were affected by the retrenchments,
CWU, SACU, Solidarity and ICTU
were the consulting parties for
purposes of
s189
(1) and
189A
(13) of the LRA with the necessary
locus
standi
to bring a
s189(13)A
application.
7.2
The dispute relating to any alleged non-compliance with a fair
procedure is
res judicata
as an application to declare it as
such was brought by Solidarity and an agreement relating to the
future conduct of the consultations,
including the appointment of a
facilitator, was reached and made an order of the Labour Court on 22
July 2014.
7.3
A facilitator, Mr Charels Nupen, was appointed by agreement of the
consulting parties in terms of
s 189A
(4) of the LRA and facilitated
the consultations from 21 July 2014 until 9 October 2014.
Accordingly, the provisions of
s189A
(8) of the LRA do not apply. It
is
s189A(7)
of the LRA which applies and more than 120 days (60 days
in excess of the prescribed minimum) had lapsed since the issuing of
the
s189(3)
notice, which had been issued on 12 May 2014 to the
applicant and 17 May 2014 to the trade unions. The termination of
applicant’s
employment contract was thus lawful’.
[3]
I will consider the preliminary points in turn. The first respondent
submitted that the applicant has no
locus standi
to bring an
application in terms of
section 189A(13)
of the LRA as he is not a
consulting party as contemplated in
section 189A
(13) of the LRA and
for purpose of
section 189(1)
of the LRA. A consulting party is
defined as follows in
section 189(1)
of the LRA:
‘
(1)
When an employer contemplates dismissing one or more employees for
reasons based on the employer’s operational requirements,
the
employer must consult-
(a)
Any person whom the employer is required to
consult in terms of a collective agreement;
(b)
If there is no collective agreement that
requires consultation-
(i)
A workplace forum, if the employees likely
to be affected by the proposed dismissals are employed in a workplace
forum in respect
of which there is a workplace forum; and
(ii)
Any registered trade union whose members
are likely to be affected by the proposed dismissals.
(c)
If there is no workplace forum in the
workplace in which the employees likely to be affected by the
proposed dismissals are employed,
any registered trade union whose
members are likely to be affected by the proposed dismissals; or
(d)
If there is no such trade union, the
employees likely to be affected by the proposed dismissals or their
representatives nominated
for that purpose.’
[4]
The applicant sought to rely on
Aviation
Union of South Africa and Another v SA Airways (Pty) Ltd and
Others
[1]
in arguing that it was not the intention of the legislature to
require an employer to consult only one of the consulting parties
referred to in
section 189
(1) of the LRA as such interpretation is
narrow, simplistic and leads to absurdity. He criticized the decision
in
Sikhosana
and Others v Sasol Synthetic Fuels
[2]
where it was held that although
section 189
(1) of the LRA sets out
four levels of consultation, the hierarchy of obligations is
intentional. An employer need only consult
the employees likely to be
affected by the proposed dismissal if there is no registered union
whose members are likely to be affected
by the dismissal. The
applicant sought to rely on the following dictum of
SACCAWU
and Another v Amalgamated Retailers (Pty) Ltd
[3]
.
‘…
The
identification of a consulting party by applying the criteria
established in
section 189(1)(a)
, (b) and (c) might confer exclusive
rights on the partner with first claim in relation to the other
potential partners listed in
those paragraphs, but it does not
relieve the employer of an obligation to consult in terms of
subsection (d) with affected employees
or their representatives
nominated for the purpose if those employees are not presented in
some manner or form by a collective
bargaining agent, workplace forum
or registered trade union respectively. However, in this instance,
the respondent decided to
initiate and conduct a separate
consultation with non-union members, and to meet with these employees
on an individual basis to
discuss with matters relating to the
proposed restructuring and their security of employment. Having
elected to do so, it was incumbent
on the respondent to interact with
each employee with a view to reaching consensus on his or her
proposed retrenchment, and the
fairness of the respondent’s
actions must accordingly be determined on the basis of its stated
intentions.’
[5]
It was further argued on behalf of the applicant that
section 189
(1)
(a) of the LRA must be purposively construed. It applies when there
is a collective agreement which requires the employer to
consult a
particular person or body when it contemplates the dismissal of the
employee or employees in question. Absent such collective
agreement,
section 189
(1) (a) does not apply, See
United
Breweries (SA) Ltd v Khanyeza and Others
[4]
.
The applicant argued that contrary to the decision in
Aviation
Union of South Africa and Another (supra)
where
it was held that an interpretation which takes away employees’
rights should not be preferred, the first respondent,
by raising this
point
in
limine
,
adopts an attitude and a construction which takes away the
applicant’s right to be consulted. In
Moyo
v Knight Watch Security
[5]
it was held that in the absence of evidence of the existence of a
collective agreement regulating consultation in respect of a
retrenchment, the respondent was under an obligation to consult with
the applicant. The applicant argued that a literal construction
of
section 189
(1) means that non-unionized employees will not be
consulted. They will be denied recourse to procedural fairness in
terms of
section 189A
(13). It will further penalize employees who do
not belong to a trade union.
[6]
The first respondent denied that the applicant was a consulting
party. It was argued on behalf of the first respondent that
a number
of cases which the applicant sought to rely on recognize the
hierarchy governing the consultation process in
section 189
(1) of
the LRA. In
SA
Municipal Workers Union and Another v SA Local Government Association
and Others
[6]
the court expressed the view that it saw no need to depart from the
principles established by this court under
section 189
that recognize
a hierarchy of persons or bodies, the first relevant to the
particular factual circumstance excluding all others
that rank below
it. Reference was made to
Sikhosana
and
Maluleke
.
In
Maluleke
(supra)
the
court relied on
Mahlinza
in recognising the hierarchy. In
Moyo
(supra)
the court did not disagree with the hierarchy system. In
Aude
SA (Pty) Ltd v NUMSA
[7]
the Labour Appeal Court recognised the hierarchy in the consultation
process.
[7]
Based on the hierarchy governing consultation is
section 189
(1), the
first respondent argued that the applicant was not a consulting
party. The first respondent further submitted that the
applicant was
not involved in consultation from May 2014 when the consultation
process commenced. He was not consulted about the
issues consulting
parties are required to consult about. He did not participate in all
ten meetings facilitator in terms of
section 189A
(4). He was merely
informed that consultation was about to start. He was part of
consultation which was run by the consulting parties.
Had the
applicant been a consulting party, he would have moved the present
application on 1 October 2014 when he received the letter
of the
termination of his services. The first respondent further argued that
the LRA does not frown upon the violation of individual
employee’s
rights. It cited the provision allowing creation of close shop which
compels employees to join a particular trade
union on taking up
employment at a particular workplace. The provision violates the
individual employee’s right of being
a member of a trade union
of his or her choice. Another example was a collective agreement
which is extended to non-parties. The
first respondent argued that in
the same vein,
section 189(1)
of the LRA deliberately created the
hierarchy which intentionally denies individual employees likely to
be affected by retrenchment
of the right to be consulted when there
is a body to be consulted in terms of
section 189(1)(a)
of the LRA.
[8]
The material facts of this matter are that early in 2014, the first
respondent took a decision to embark on a restructuring
exercise. It
announced that managerial staff would be the first to be affected by
the exercise. As the applicant was a Senior Manager
Call Centres, he
fell within the category of managerial staff. About 2500 employees
were affected by the restructuring exercise.
The applicant submitted
that on 12 May 2014, the first respondent’s Group Chief
Executive Officer (‘the CEO’)
announced the restructuring
process and indicated that consultation would commence on 13 May
2014. The applicant received a letter
which purportedly constituted a
notice in terms of
section 189
and
189
(A) of the LRA shortly after
12 May 2014. The consultation process commenced on 13 May 2014 with
the CEO making presentations to
employees on the new structure and
giving content to the framework he had given earlier. Affected
employees in Gauteng participated
by congregating at St Georges
Hotel, where the CEO and his team led the consultation. Employees in
other areas including the applicant
participated via their desk tops
with the applicant, as he put it, holding virgil over the process
from his office via his laptop.
Proposals and counter proposals were
exchanged between employees and the CEO and his team via the internal
communications system
with a set period at the expiry of which a
further consultation was held. The applicant attended the second
consultation in Durban
where the COO took the employees through the
restructuring plans. Employees whose positions were going to be done
away with were
told to apply for alternative positions between 26 and
30 June 2014. Employees were informed that they would receive the
final
structure on or about 25 June 2014. The applicant applied for
three positions namely: Senior Employee Labour Relations Manager –
Eastern Cape, Western Cape and Northern Cape Senior Manger Call
Centre and an alternative position for Senior Manager Call Centre.
He
was unsuccessful. On 1 October 2014 he received a letter terminating
his services in terms of
section 189
(A) (7)(a) of the LRA with
effect from 1 October 2014. It was the applicant’s submission
that his services were prematurely
terminated.
[9]
The first respondent submitted that it consulted only,
CWU, SACU,
Solidarity
and
ICTU,
trade unions with whom it was
required to consult in terms of recognition agreements. It denied
having consulted with the applicant
and submitted that it only
provided the applicant with relevant information. The applicant did
not attend any of the ten meetings
facilitated by Mr Nupen (“Nupen”)
a facilitator selected by the consulting parties. These submissions
were not refuted
by the applicant. In
SACCAWU (supra)
it was
held that the respondent decided to initiate and conduct a separate
consultation with non-union members and to meet with
them on an
individual basis to discuss matters relating to the proposed
restructuring and their security of employment. The respondent
was
ordered to consult the individual employees properly and fairly. The
court however, clarified its decision as follows:
‘
I
wish to emphasis that I reach this conclusion on the facts of this
case and in the light of the respondent’s stated intentions.
It is not a general proposition concerning the right of individual
employees in a consultation process. Given the primacy accorded
to
collective engagement with a trade union, a workplace forum or the
representatives of employees accorded by
section 189
(1) and to which
I have referred above, it is entirely feasible that an employer may
discharge its obligations in terms of that
section without engaging
in separate consultation with affected individual employees.
Baloyi’s
case is an example of such an
instance.’
[10]
An analysis of the authority, the applicant and the first respondent
sought to rely on reveals that in a number of cases, our
courts have
interpreted
section 189(1)
strictly by acknowledging the hierarchy
governing the consultation process. In
Moyo
(
supra)
the
court found the respondent’s refusal to consult individual
employees to constitute procedural unfairness because there
was no
collective agreement which required consultation with a particular
person or body. It therefore, gave
section 189
(1) of the LRA a
literal interpretation. Where the respondent elected to consult
individual employees, it was held that the respondent
had to see its
lection through by holding proper consultation. See
Oosthuizen v
Telkom
. I have considered the applicant’s argument that the
LAC held in
Baloyi
(supra)
that an employer was
required to consult with individual employees who were not
represented by a consulting trade union. That case
is distinguishable
from the present as it involved an employee who was represented by a
trade union during consultation. I am further
of the view that the
court made that comment
obiter,
it can therefore not be relied
upon. The LAC clarified the correct position as follows in
Aude
(supra).
‘
Where
an employer consults in terms of agreed procedures with the
recognised representative trade union in terms of a collective
agreement which requires the employer to consult with it over
retrenchment, such an employer has no obligation in law to consult
with any other union or any individual employee over the
retrenchment…’.
[11]
I have considered the applicant’s argument that in
Aviation
Union of SA & Another v SA Airways (Pty) Ltd & Others
[8]
the court held that an interpretation which does not violate rights
of employees should be followed. Each case is judged
on its
merits and the decision in
Aviation
Union of SA & Another (supra)
is based on facts which are materially different from those of the
matter at hand. I am inclined to agree with the first respondent
that
the LRA provides for the primacy of collective agreements. When the
legislature created the hierarchy in
section 189(1)
of the LRA it did
so deliberately. Even in instances where employers were ordered to
consult with individual employees, the hierarchy
system of
consultation was referred to with approval and not tempered with. The
courts correctly applied the doctrine of election
and held the
employers to their election.
[12]
The literal approach was criticized by the applicant, inter alia, on
the basis that it may have absurd results in instances
where an
employer may reach a collective agreement with a minority trade union
thus excluding a majority trade union from consultation.
The LAC
dealt with that scenario in
Aude (supra).
It reaffirmed the
meaning and purpose of a collective agreement and considered the
validity the new collective agreement which
excluded the majority
union from the consultation process. It restored the majority union’s
right to be consulted which the
appellant and a minority had
unscrupulously stripped the majority union of. The court will always
come to the rescue of a litigant
who has a right to be consulted in
terms of
section 189
(1) of the LRA when that right has been unduly
taken away as a result of ingenious conduct by an employer and
another party. There
is therefore no need to create an obligation for
an employer to consult with an individual applicant in contravention
of
section 189
(1) of the LRA for the purpose of protecting the
individual employee from unscrupulous employers and other consulting
parties as
individual employees have a remedy which is consistent
with
section 189
(1) of the LRA.
[13]
The applicant submitted that his right to be consulted stems from the
fact that he was a
de facto
consulting party as the first
respondent had consulted with him. The first respondent submitted
that the communication between
the applicant and itself did not
constitute consultation but it was its effort to keep the applicant
informed of the retrenchment
process and to maintain transparency. It
maintained that it consulted with trade unions in terms of
section
189(1)(a).
Section 189(2)
requires consulting parties to engage in a
meaningful joint consensus-seeking process and attempt to reach
consensus. The applicant’s
description of his participation in
the retrenchment process is consistent with the first respondent’s
version. He was not
afforded an opportunity to influence the
retrenchment process. The applicant did not object to his exclusion
from the facilitation
which was conducted by Nupen. The facilitator
conducted ten meetings between the first respondent and the
consulting parties. Had
the applicant been of the view that he was a
consulting party either
de facto
or
de jure
he would
have demanded to participate in the facilitation. His failure to take
action against his exclusion from the facilitation
does not support
his version. Consultation is an active process. The role the
applicant played in the retrenchment process,
even on his own version
is passive. It is inconsistent with the definition of consultation.
[14]
The applicant was not a consulting party as envisaged in
section
189(1)
of the LRA. The first respondent did not make the applicant a
de facto
consulting party as it did not consult with him in
connection with his dismissal for its operational requirements. He
therefore
lacks
locus standi
to bring the present application
as envisaged is
section 189A
(13) of the LRA.
[15]
The second point
in limine
was that this matter is
res
judicata
as an application to compel the first respondent to
comply with a fair procedure (the same application as the present)
was brought
by
Solidarity,
one of the consulting parties and
resolved by agreement relating to the future conduct of the
consultation including the appointment
of a facilitator. The
agreement was made an order of court in July 2014. The applicant
disputed the first respondent’s claim
on the basis that the
dispute between
Solidarity
and the first respondent concerned
different challenges to procedural fairness and involved different
parties.
[16]
Considering the issue of
res
judicata,
the court in
Fidelity
Guards Holding (Pty) Ltd v PTWU and Others
[9]
relied on the following definition:
‘
The
most oft-quoted authority for the requirements of the defence of res
judicata is Voet Commentarius ad Pandectas 44.2.3:
‘
Under
no other circumstances is the exception allowed than where the
concluded litigation is again commenced between the same parties,
in
regard to the same thing, and for the same cause of action, so much
so, that of one of those requisites is wanting, the exception
fails”
(
Bertram v Wood
(1883) 10 SC 177
at
181
)’
The
court however added that the strict common-law requirements for the
defence of
res judicata
should not be taken literally and
applied in all cases as inflexible rules. There is room for adoption
of the rule and every case
has to be decided on its facts.
[17]
I accept the applicant’s argument that the fact that the
parties before court when the court order was granted and the
parties
before me is a fatal flaw in the first respondent’s defence.
Inescapably, the cause of action if the same, however,
the relief
sought by the parties is different. As
section 189(1)
requires an
employer under appropriate circumstances to consult with more than
one party, the different parties may experience
the employer’s
failure to follow a fair procedure differently. The order granted in
July 2014 provides,
inter alia,
for the appointment of a
facilitator and implementation of the facilitator’s
recommendations. It does not deal with the kind
of procedural
unfairness which triggered this application. As an employer’s
failure to follow a fair retrenchment procedure
manifests itself in
different ways, each consulting party retains its right to approach
this court in terms of
section 189A
(13) for as long as the manner in
which it experiences an employer’s failure to follow a fair
procedure has not been determined
by a court of law. This point
in limine has no legal basis.
[18]
The last point in
limine
is that as consultation was
facilitated, the first respondent terminated the applicant’s
services lawfully in terms of
section 189A
(7) as more than double
the prescribed 60 day period had lapsed from 12 May 2014, the day on
which the applicant was issued with
the
section 189(3)
notice and the
date on which he was given notice of the termination of his service.
The applicant argued that the termination of
his service was unlawful
because the appointment of the facilitator by way of private
arrangement rather than under the auspices
of the Commission for
Conciliation Mediation and Arbitration (CCMA) does not satisfy the
requirements of
section 189A
of the LRA. He submitted in the
alternative that the facilitation did not satisfy the requirements of
section n 189A of the LRA
in view of his exclusion from the process.
[19]
Facilitation in the process of dismissing employees for operational
requirements of the employer is governed by the following
sections:
‘
(3)
The Commission must appoint a facilitator
in terms of any regulations made under subsection (6) to assist the
parties engaged in
consultations if-
(a)
the employer has in its notice in terms of
section 189
(3) requested facilitation; or
(b)
consulting parties representing the
majority of employees whom the employer contemplates dismissing have
requested facilitation
and have notified the Commission within 15
days of the notice.
(4)
This section does not prevent an agreement to appoint a facilitator
in circumstances not contemplated in subsection (3).’
[20]
The applicant submitted that as a
de facto
consulting party he
was entitled to be consulted and therefore to participate in a lawful
facilitation process. He argued that
the appointment of a facilitator
who was not a commissioner of the CCMA was in breach of
section
189A(4)
because the purpose of
section 189A(4)
was to afford
consulting parties an opportunity to appoint a CCMA facilitator after
the 15 days period prescribed in
section 189A(3).
It was never the
intention of the legislature to remove the facilitation process from
the CCMA. The CCMA was deliberately charged
with the responsibility
of facilitation to protect consulting parties from anything that may
go structurally wrong during the facilitation.
The first respondent
argued that if by enacting
section 189A(4)
the legislature intended
extending the 15 day period in
section 189A
(3) the legislature would
have stated so expressly as it did with the other time periods it
enabled the Labour Court and the CCMA
to condone.
Section
191(2)
of the LRA provides for condonation of the late referral of
disputes to the CCMA.
Section 145(1A)
provides for condonation of the
late filing of review applications.
Section 189A
(4) is unambiguous
and its literal construction does not lead to absurdity. There are
therefore no grounds not to give it its literal
interpretation. The
skill to facilitate consultation is not possessed by CCMA
commissioners only.
Section 189(4)
makes the pool from which a
facilitator may be chosen bigger. It gives consulting parties the
liberty to select the best facilitator
who may not necessarily be a
CCMA commissioner. It further extends the 15 day period within which
a request for facilitation should
be made. The applicant’s
argument that facilitation was intended to be conducted by CCMA
commissioners only has no legal
basis.
[21]
If the applicant was a consulting party as he alleges, he would have
approached this court in terms of
section 189
(13) shortly after the
agreement to appoint a facilitator was made an order in July 2014. He
did not and time did not wait for
him. He realized too late that the
process had moved to the point where the first respondent could
invoke provisions of
section 189
A(7) and issue him with a notice of
the termination of his contract of employment in accordance with
section 37 (i) of the Basic
Condition of Employment Act 75 of 1997.
As the applicant received his notice in terms of section 189(3) on 12
May 2014, the first
applicant could lawfully issue him with a notice
of the termination of his contract of employment after 13 July 2014.
The termination
of the applicant’s contract of employment was
therefore lawful.
[22]
In the premises the following order is granted:
22.1
The point in limine that the applicant was not a consulting party and
lack
locus standi
to bring this application is upheld
22.2
The point in limine that this matter is
res judicata
is
dismissed.
22.3
The point in limine that the termination of the applicant’s
contract of employment was lawful is upheld.
Lallie
J.
Judge
of the Labour Court of South Africa.
APPEARANCES
For
the Applicant: Advocate Le Roux
Instructed
by Brown Braude & Vlok Attorneys
For
the Respondent: Mr Maserumule of Maserumule Attorneys
[1]
[2012] 3 BLLR 211 (CC)
[2]
[2000] 1 BLLR 101 (LC)
[3]
[2002] 1 BLLR 95
(LC) at paras 26.and 27.
[4]
[2006] 4 BLLR 321 (LAC)
[5]
[2009] JOL 23721 (LC)
[6]
(2010) 31
ILJ
2178 (LC)
[7]
[2011] JOL 27732
(LAC) at para 32.
[8]
[2012] 3 BLLR 211 (CC)
[9]
[2008] ZALC 85
;
[1998]
10 BLLR 995
(LAC) at para 7