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[2015] ZALCJHB 46
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Solidarity obo Bezuidenhout v Redpath Mining (South Africa) (Pty) Ltd (JS861/13) [2015] ZALCJHB 46 (20 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Judgment
Case No: JS
861/13
DATE: 20 FEBRUARY
2015
Not Reportable
In the matter
between:
SOLIDARITY
OBO D.
BEZUIDENHOUT
...........................................................................
Applicant
And
REDPATH
MINING (SOUTH AFRICA) (PTY)
LTD
.......................................................
Respondent
Heard
: 12,13,16,17 and19 February 2015.
Judgment
: 20 February 2015.
Summary
: Retrenchment.
Judgment
AC
BASSON, J
The
parties
[1]
The applicant in this matter is Mr D
Bezuidenhout (hereinafter referred to as “the applicant”).
At the time of
his retrenchment he was employed as a mine
overseer and stationed at the Ghaghoo Diamond Mine in Botswana. In
terms of the applicant’s
contract of service he was
specifically employed to work at the Ghaghoo Mine. Mr Schultz (the
Operation’s Director of the
respondent) also confirmed that he
had approached the applicant to work at the Ghaghoo Mine after the
previous mine overseer was
taken off the mine following an incident
where two individuals lost their lives. It is common cause that
the applicant commenced
work on 7 August 2013 and that the date of
his retrenchment was 12 April 2013.
[2]
The respondent is Redpath Mining (South
Africa) (Pty) Ltd (hereinafter referred to as the “respondent”).
The respondent
was contracted by Gem Diamonds Botswana (Pty) Ltd
(hereinafter referred to as “the client”) to sink a so
called sand
tunnel at the Ghaghoo Mine. In essence the
respondent was required by the client to sink a sand tunnel which was
a first
of its kind project on the continent of Africa. It was also
common cause that this tunnel was excavated manually and that, at the
time, the respondent did not foresee that blasting would be necessary
to sink the tunnel as the terrain consisted mainly of sand.
(I will
return to this issue herein below.)
Summary of the
evidence
[3]
It is also common cause that the respondent
ceased its mining activities at the Ghaghoo Mine round about July
2013 – that
is more or less 3 – 4 months after the
applicant’s retrenchment. The applicant confirmed that his
position as mine
overseer in Botswana no longer existed as from July
2013 as the mine activities had ceased.
[4]
The applicant was in possession of a South
African Blasting Licence. This licence is, however not recognised by
the Botswana Mining
Directorate. However, because it was not foreseen
that the respondent would engage in blasting activities at the
Ghaghoo Mine,
it was not required by the respondent at the time when
the applicant was engaged that the applicant had to be in possession
of
a valid Botswana Blasting Licence. It was further common
cause that an individual can only apply for this licence once the
individual is physically in Botswana.
[5]
It was also common cause that a thick layer
of calcrete was encountered during the latter part of 2012 which made
it impossible
to continue to excavate the tunnel with the available
machinery. A decision was then taken to commence with blasting
as this
was the only way in which the calcrate could be removed. In
this regard Mr Schultz and Mr Warren Roe (who was in charge of
health, safety and legal compliance on the mine) confirmed that the
calcrete layer made it impossible to continue with the tunnel
without
blasting. The applicant also confirmed that the calcrete layer
delayed the excavation process and that the project was
falling
behind because the machinery could not break the calcrete layer. More
importantly, the applicant confirmed that he was
part of the decision
to commence with the blasting process. This decision that
blasting became necessary was taken around
September- October 2012.
[6]
When it became necessary to commence with
blasting it also became necessary for the client (Gem Diamonds) to
apply for a blasting
licence with the Botswana Mining Directorate.
Because the Botswana Government did not recognise South African
Blasting Licences
(although they were very similar), it likewise
became necessary and in fact urgent, for all supervisors on the
Ghaghoo Mine to
obtain Botswana Blasting Licences. In this
regard it was common cause that the applicant and his team - Mr
Badenhorst, Mr
Prinsloo and Mr Feyt were required to obtain Botswana
Blasting Licences.
[7]
Of importance therefore is the uncontested
fact that as of September/ October 2012, there was an operational
requirement that the
aforementioned four individuals obtain blasting
licences from the Botswana Mining Directorate. This requirement
arose from
the fact that a decision was taken (of which the applicant
was a part of) to commence with blasting at the mine.
[8]
It was not disputed that the client
informed the respondent that the supervisors employed at the Ghaghoo
Mine were required to sit
for an exam for the Botswana Blasting
Licence. It was also not disputed, as I have already indicated,
that a Botswana Blasting
Licence could only be obtained in Botswana.
In other words, the applicant and his team were not able to obtain
such a licence prior
to their arrival in Botswana.
[9]
Both Mr Schultz and Mr Roe testified that
they had personally informed the applicant and his team that they had
to pass the exam
and that they only had
one
opportunity to pass the exam. These two witnesses also
confirmed that the applicant and his team had received the material
to study for the exam and in fact also had prior exam questions and
model answers. Mr Schultz confirmed that the applicant did
not
express any reservations regarding the requirement to sit for the
exam. In fact, as already pointed out, the applicant
himself
confirmed that he was part of the decision that blasting had to take
place in light of the fact that the calcrete layer
could not be
broken by machinery.
[10]
It was further common cause that the
applicant and his team sat for the exam on 7 March 2013 in Gaborone
at the office of the Mine
Directorate. There is some dispute
about what happened at the exam and whether the applicant and his
team were instructed
to wait for the results after the exam. There is
also some dispute whether the applicant was told by Mr Van Antwerp
not to wait
for the exam results but that they had to return to the
mine. Mr Roe explained that he was personally informed by the
Inspector
Mr Bora that the applicant and his team were advised during
the induction just prior to the exam that they had to wait for the
results. The reason being that those candidates that received a mark
of between 70% and 90% would be required to sit for an oral
exam.
Only those who received 90% and over passed the exam. I do not find
it necessary to decide this dispute in light of the fact
that it was
common cause that the applicant received 83% and that he did not wait
for the oral exam. The important fact for
purposes of this
judgment is the fact that the applicant did not pass the examination
and that this resulted in his retrenchment.
[11]
It is important to refer to the evidence of
Mr Roe who was, as already pointed out, responsible for health safety
at the Ghaghoo
Mine. He confirmed that legislation in Botswana (which
is similar to legislation in South Africa) require that any person
who handled
explosives at a mine had to be qualified and had to be in
possession of a Botswana Blasting Licence. Mr Roe explained that it
was
always the plan to obtain licenses for the applicant and his team
and that he had prepared documentation to this effect. He also
obtained information about the past learning experience of the
applicant and the three others which he submitted to the client.
He
also confirmed that once the calcrete layer was struck blasting
became urgent. Mr Roe explained that he had requested
more than
one postponement for the Blasting Licence exam to afford the
applicant and his team sufficient time to study for the
exam. Mr Roe
confirmed that the applicant did not express any reservations to
writing the exam. Both Mr Roe and Mr Schultz
confirmed that
they had personally informed the applicant and his team on more than
one occasion that they only had one chance
at the exam and that it
was important for them to pass the exam.
[12]
Mr Roe explained why he had requested
information from the applicant and his team regarding past learning
experience. In this
regard Mr Roe explained that in order to
qualify to write the exam for the Botswana Blasting Licence and
individual had to have
a certain amount of underground practical
experience. This experience required that an individual must
have done 75 shifts
underground in a mine in Botswana. The
undisputed evidence was that the client (Gem Diamonds) had reached an
agreement with
the Inspectorate to waive this requirement and to give
due recognition to prior learning. As a result of this
agreement the
applicant and his team were allowed to sit for the
blasting licence exam on the strength of the fact that they had 10
years of
experience underground. Mr Roe, however, explained that the
Inspector made it clear to the client that this extension would only
be for one exam. In other words, if the applicant and his team failed
the exam the Inspectorate would reinstate the requirement
that the
applicant and his team had to do the 75 shifts underground in a mine
in Botswana. The waiving of the 75 shifts underground
requirement was therefore granted on condition that the candidate
passes with a mark of 90%. Mr Roe therefore explained that it
was in
light of this agreement that was reached between the client and the
Inspectorate that it was therefore of the utmost importance
that the
applicant and his team pass the exam as there would not be a second
opportunity to sit for the exam.
[13]
It is common cause that the applicant had
received a mark of 83% for the exam and that he therefore failed the
exam. Mr Badenhorst
and Mr Feyt also failed the exam. Only Mr
Prinsloo had passed the exam. It was not disputed that Mr
Prinsloo continued to
work for the respondent. Because the applicant
did not wait for the oral exam because he had returned to the mine,
he therefore
did not sit for the oral exam and was deemed to have
failed the exam. I have already referred to the dispute whether
or not
the applicant was aware that he had to wait for the oral exam
and whether or not he was told by Mr Van Antwerp to return to the
mine immediately. Mr Van Antwerp disputed that it was part of the
conversation he had with the applicant on 7 March 2012 whether
they
should wait for the results or return to the mine. I have also
referred to the fact that this dispute is largely irrelevant
to the
dispute before the Court because in the end the fact remains that the
applicant had failed the exam. What is important is
what followed
after it became known that the applicant had failed the exam.
Events after the
examination
[14]
Following the outcome of the exam the Chief
Inspector of Explosives of the Republic of Botswana (Mr Kwena)
informed the Manager
of the client (Gem Diamonds Botswana) on 8 March
2013 that only one candidate namely Mr Prinsloo had passed the exam.
On 25 March
2013 Mr Van Antwerp of the respondent was informed by the
client of the fact that the three employees including the applicant
did
not pass the exam. The following is stated in the letter:
“
Acknowledging
the aforementioned communication, we are compelled to review the
Ghaghoo Diamond Mine management position which allowed
these
individuals to work as supervisors without blasting licences. Our
previous tolerance of this anomaly was based on this individuals
ultimately sitting for examinations and legitimising the supervisory
roles by passing. Since these gentlemen have failed, it has
become
untenable to continue with the position we held.
You are hereby
instructed to, within seven days of the date of this letter:
1 Provide reasons
why the individuals who failed should not be replaced without delay.
2. State how you
will manage the Works to continue without being delayed, while
maintaining based safety practices, legal compliance
and fulfilling
your contractual obligations in all respects.
We also need to
state that going forward now one without a valid Botswana Blasting
Licence will be allowed to operate on the mine,
in a supervisory
capacity that requires blasting licence; this includes any work to be
performed on the sinking of the Ventilation
Shaft.”
[15]
It was debated with the witnesses for the
respondent whether any submissions were made to the client to
persuade the client not
to remove the applicant (and Mr Badenhorst
and Mr Feyt) from the mine. Mr Van Antwerp was not very clear on this
issue in his evidence.
He did, however, confirm that because
the applicant, Badenhorst and Feyt did not pass the exam, a decision
was taken that
they were redundant. A retrenchment process
followed thereafter.
[16]
After
this letter was received from the client, the applicant (and the two
others) was instructed to leave the mine operations in
Botswana and
return to head office in South Africa for a discussion. When
they arrived at the offices on 4 April 2013 they
were met by Mrs
Heidi Douglas – the Human Capital Manager who was in charge of
the retrenchment process. The applicant
confirmed that the
letter from the client addressed to Mr Van Antwerp was discussed with
them. The applicant and the two
others were then furnished with
section 189(3) “Notice of Intention to Retrench” in terms
of the Labour Relations Act
[1]
.
The retrenchment process therefore formally commenced on 4
April 2013. There is some dispute as to what was discussed during
the
meeting on 4 April 2013. The applicant was adamant that this
was not a consultation meeting but merely a discussion.
He, however,
confirmed that the contents of the letter were discussed with them.
(I will return to this issue hereinbelow.)
[17]
It
was common cause that the union – Solidarity – was not
involved or invited to the consultation process. There
was some
dispute about whether Mrs Douglas was aware of the fact that the
applicant was a member of Solidarity. What is, however,
clear from
the facts is that the applicant did indicate on a form at the
commencement of his employment that he was a member of
Solidarity.
He, however, left open the other sections in respect of his
union membership and particulars regarding the date
he became a
member. No information regarding his membership number and his
membership status appeared on the form. Mrs Douglas
testified that
she was not aware of the fact that the applicant was a member of
Solidarity firstly because no Recognition Agreement
with Solidarity
was in place and secondly because no stop orders were deducted in
favour of Solidarity from the applicant’s
salary. She also
stated that the applicant did not bring it to her attention that he
was a member of Solidarity and that if he
had done so, she would have
involved the union. The applicant confirmed that he did not inform
Mrs Douglas that he was a member
of Solidarity. It is common cause
that the applicant was elected as a representative on behalf of the
three individuals who were
the subject of the retrenchment process (I
will return to this aspect herein below). Suffice to point out that
there was, in my
view, an obligation on the applicant to inform the
respondent that he was a union member and that he wished to have
union representation.
The section 189(3) notice makes it clear
that the applicant was entitled to representation – although it
does not state
union representation. Although the obligation to
consult and to follow the retrenchment process falls primarily on the
employer
this does not mean that the employee can remain passive. In
this instance the applicant was a senior manager and it could
in my
view have been expected from him to alert the respondent to the fact
that he was a union member and that he wished to be
represented by a
union. Instead the applicant was chosen by the other two
employees to represent them during the consultation
process.
[2]
[18]
The applicant sent an e-mail dated 5 April
2012 to Mrs Douglas. The following part of the e-mail is important
for purposes of this
judgment:
“
We
as employees or (sic) Redpathmining does not agree to what is
happening at this point of time. But we understand that the client
Gemdiamond requested to remove us from site and for Redpathmining to
comply to the letter that was sent to Redpathmining management
as we
are the contractor on site although Redpathmining could argue that
having a Botswana blasting licence is not part of the
Bill and part
of the contract agreement and scope of work there is we were not
suppose (sic) to do any blasting work on this project.
But for the
potential of getting more ore additional work from Gemdiamond it make
(sic) seems not to fight the issue and for that
purpose we understand
the reason of removing us from the site.”
[19]
The applicant confirmed in his evidence
that he had understood why a decision was taken to remove him from
the site. He also testified
that he understood that the client had
placed pressure on the respondent to remove them from the mine
because they did not pass
the exam. The applicant therefore conceded
in his evidence that he understood the reasons for his removal from
the project and
that by asking for alternative work with the
respondent, he in fact conceded that the respondent had to remove
them from the Mine.
The applicant, however, refused to concede that
the respondent had a reason to retrench him.
[20]
The applicant also stated in his email of 5
April 2013 that he was informed by Mr Roe that the three people who
had failed the test
had another chance to obtain the Botswana
Blasting Licence. Mr Roe had a different version in respect of what
had in fact happened
when he discussed this request with the
Inspectorate in Botswana. In this regard it is important to refer to
the uncontested evidence
of both Mr Shultz and Mr Roe. Mr Roe
explained that he personally met with Mr Bora of the Mine
Inspectorate to plead with him to
afford the applicant and his team a
second chance at sitting for the exam. He explained that Mr Bora was
prepared to afford them
a second opportunity to sit for the exam on
condition that the applicant and the other two do the 75 shifts
underground at a mine
in Botswana. Mr Roe was specifically informed
by the Inspector that the exemption, which the applicant previously
had in terms
of the agreement between the Inspectorate and the client
that their prior learning would be considered, no longer applied. Mr
Roe
explained that the only mine in Botswana that could have
accommodated the applicant and the other two to do the 75 shifts was
not
willing to allow the applicant and the other two to work
underground. He explained that the mine in Botswana was not
willing
to take the legal responsibility for the applicant and his
team. According to Mr Roe the respondent was therefore unable
to assist the applicant to comply with the conditions set by the
Inspectorate.
[21]
Mr Shultz explained that he was
disappointed by the results. He explained that he had
personally approached the Inspectorate
on three occasions to try to
arrange that the Inspectorate afford the applicant another
opportunity to sit for the exam. His appeals
were unsuccessful. He
also confirmed that the Inspectorate had informed him of the
condition that the applicant and the two others
had to do 75 shifts
underground prior to re-sitting for the exam. Mr Shultz therefore
also confirmed that he had tried to accommodate
the applicant. It is
also important to refer to the meetings Mr Shultz had with the client
in Gaborone. The very issue of
the applicant’s failing of
the exam was raised during a meeting after the letter was sent to the
respondent by the client.
Subsequent thereto, as already pointed out,
Mr Schultz had lodged more than one appeal to the Mine
Directorate. Mr
Warren Roe was thereafter sent to meet with Mr
Bora and plead with him to afford the applicant a further opportunity
to sit for
the exam. I have already referred to the discussions
between Mr Bora and Mr Roe.
[22]
In light of the fact that the evidence of
Mr Schultz and Mr Roe regarding their efforts to secure a further
opportunity for the
applicant to write the exam was uncontested, it
is therefore accepted that the respondent had tried on various
occasions to persuade
the Inspectorate to afford the applicant a
further opportunity to sit for the exam. The Court also accepts that
because the respondent
was unable to place the applicant at a mine in
Botswana to fulfil the condition of 75 shifts underground (in a
Botswana Mine) that
the respondent had exhausted its efforts to
secure a second chance for the applicant to rewrite the exam. The
Court must therefore
also accept that the respondent had to remove
the applicant (and the two others) on the instruction of the client
who insisted
that the supervisors be in possession of a Botswana
Blasting Licence. I have already pointed out that it is a legal
requirement
that any person who handles explosives must be in
possession of a Botswana Blasting Licence. Lastly, it should be borne
in mind
that the applicant was employed in a senior position as a
mine overseer. It can hardly be argued that he would have been able
to
oversee the mine and handle explosives if he was not in possession
of a Botswana Blasting Licence.
[23]
I am therefore of the view that the
respondent had a valid operational rationale to remove the applicant
from Botswana and commence
a retrenchment process. As a result
of the applicant’s failure to obtain a Botswana Blasting
Licence, he was no longer
fit to be employed at the Ghaghoo Mine.
The
position of Mr Tom Rogers
[24]
Mr Roe confirmed that another individual
with the name of Mr Tom Rogers was appointed on the mine in the
applicant’s position
after the applicant was removed. He
confirmed that Mr Rogers likewise did not hold a Botswana Blasting
Licence. The exemption in
respect of the 75 shifts, however, now
applied to Mr Rogers. In this respect Mr Rogers was in the
exact same position that
the applicant and the three others were when
they had arrived in Botswana. Mr Rogers therefore also had an
opportunity to sit for
the exam. The condition that he only had one
chance to sit for the exam equally applied to Mr Rogers. Is common
cause that Mr Rogers
never sat for the exam as the operations at the
mine ceased towards the middle of 2013.
The procedural
fairness of the dismissal
[25]
Turning to the procedure that was followed
prior to the dismissal of the applicant. I have already referred to
the fact that one
discussion was held on 4 April 2013 during which
the 189 (3) notice was handed to the applicant and the two others.
Although
it was accepted by the applicant that the contents
were brought to his attention I am in agreement with the applicant’s
evidence
that this could not have constituted a consultation meeting.
[26]
After the email of 5 April 2013 the parties
never met again until 12 April 2013 when the applicant was handed his
dismissal letter.
Mrs Douglas testified that it was agreed between
the parties that they would consult via correspondence because the
applicant resided
in Rustenburg.
[27]
Although I do accept that this may have
been the agreement, it is clear from the evidence and the documents
before this Court that
no consultation via correspondence had in fact
taken place. In fact, Mrs Douglas never communicated with the
applicant since she
had received the email. She also confirmed that
no correspondence was forwarded to the applicant after receipt of the
email. It
was common cause that on 12 April 2013 Mrs Douglas met with
the applicant individually. According to her some issues were
discussed.
There is a dispute about whether anything was discussed
and in the absence of any minutes of this meeting; the Court must
accept
that nothing of substance was in fact discussed. In
fact, what is common cause is the notice of termination due to
retrenchment
– which was prepared before the commencement of
the meeting - was handed to the applicant. His notice period ran from
12
April to 12 May 2013. On the face of the evidence before this
Court it cannot be concluded that a fair consultation process had
been followed. (I will refer to relevant case law in this regard
herein below.)
[28]
However, although no formal consultation
meetings took place, it is necessary to point out that Mrs Douglas
did in fact discuss
the e-mail with her superiors. She explained that
after she had received the email dated 5 April 2013, she discussed
the email
with her superiors and more in particular with Mr Shultz.
As a result of these discussions two alternative positions were
identified and offered to Mr Badenhorst and Mr Feyt. They were
offered the alternative positions because they had longer
service
than the applicant. These positions arose after the initial
discussions on 4 April 2013 when a new contract came to light.
Mrs
Douglas testified that LIFO was applied and that that was the reason
why Mr Badenhorst and Mr Feyt and not the applicant were
offered
these positions. The fact, however remains that no feedback was given
to the applicant during this time. No feedback was
even given to the
applicant about the efforts that were made to secure a second
examination.
[29]
Mrs Douglas disputed that a fair procedure
was not followed. She also disputed that a decision was taken to
retrench prior to the
commencement of the consultation process. In
this regard she testified that the fact that two alternative
positions were
in fact found for Mr Badenhorst and Mr Feyt was
indicative of the fact, firstly that the applicant and the two others
were not
confronted with a
fait a
complit
decision and, secondly, that
the respondent had applied its mind to the contents of the letter of
5 April 2013 and had endeavoured
to find alternative positions. She
testified that if the respondent had made up its mind to retrench the
three employees
it would not have endeavoured to find alternative
employment which it did in respect of the two employees. The
applicant was consequently
the only one to be retrenched.
[30]
It was further common cause that Mr
Badenhorst subsequently resigned from the position that he was
offered as an alternative. The
date of his resignation was 29
May 2013. It was common cause that Mr Badenhorst’s position was
thereafter offered to the
applicant by Mr Nkuna. According to
Mr Nkuna applicant told him that he did not want the position as it
paid “little”
and that he wanted to be paid what he was
paid in Botswana. It is also common cause that the applicant
was following his
retrenchment also invited to apply for a position
in Zambia. The applicant was unsuccessful with his application.
[31]
There was also some debate about whether
the applicant ought to have been offered the position that was
occupied by a certain Mr
Francois Huyser who was employed as a master
sinker at another mine. Mr Shultz’s uncontested evidence was
that it was not
possible to have bumped out Mr Huyser and employ the
applicant in the position of master sinker because he did not have
the necessary
qualifications for this position that required specific
experience. Mr Schultz explained that the incumbent had relevant
prior
experience for that position and that he was found to be
suitable for the position. He also explained that the decision to
appoint
Mr Huyser was taken together with the client on the basis
that Mr Huyser had the necessary qualifications and experience to
fill
that position. The applicant also presented no evidence to the
Court as to why he would have been able to occupy the position of
Mr
Huyser.
Fairness of the
dismissal
[32]
Was there a valid and fair reason for the
dismissal of the applicant. I have already dealt with this issue in
some detail hereinabove.
This question must be decided against the
background that the applicant had failed the exam for a Botswana
Blasting Licence and
that he therefore did not have the necessary
qualifications - which was also a legal requirement - to remain on
site. Although
this requirement to have a blasting licence was not
initially a contractual requirement it was common course that as a
result of
changes at the Ghanghoo Mine it became necessary to blast
and therefore necessary that the supervisors were in possession of a
Botswana Blasting Licence.
[33]
It is concluded that there was a valid
economic rationale for the requirement that the applicant had to be
in possession of a Botswana
Blasting Licence. I also reiterate
the fact that the applicant conceded that he was part of the decision
that it was necessary
to commence blasting at the Ghaghoo Mine. It
is also accept on the undisputed evidence that the respondent had
done everything
in its power to persuade the client and the
Inspectorate of the Botswana Department of Mines to allow for the
applicant to resit
for the examination. It is further also
accepted that it was not possible to fulfil the conditions set by the
Inspectorate
that the applicant now had to complete 75 shifts
underground in a Botswana mine.
[34]
On the evidence I am therefore satisfied that the respondent had a
valid economic rationale to commence the retrenchment process.
Although I am not persuaded that the retrenchment process was fair in
all respects, it is in my view clear from the evidence that
the
respondent had endeavoured and had in fact been successful in respect
of two employees to find alternative employment –
although
these efforts were not made in consultation with the applicant.
Although the process was in my view unfair in some respects
It cannot
be ignored that the respondent did in fact consider alternatives to
retrenchment. The Court also cannot ignore the fact
that the
applicant was offered the position of Mr Badenhorst and that he had
declined this offer. This was not an unreasonable
alternative
although it was only offered after the applicant’s retrenchment
date. The Court also cannot ignore the fact that
the Applicant was
afforded an opportunity to apply for a post in Zambia. It
should be pointed out that it is not the
function
of this Court to second guess the decision of the employer but to
consider whether the ultimate decision to retrench was
based on a
rational commercial or operational reason. See
SACTWU
and others v Discreto (A Division of Trump and Springbok
Holdings):
[3]
“
[8]
Every person has the constitutional right to fair labour practices
(section 27(1) of the interim Constitution;
section
23(1)
of
the final Constitution). As far as retrenchment is concerned,
fairness to the employer is expressed by the recognition of the
employer’s ultimate competence to make a final decision on
whether to retrench or not (cf the
Atlantis
Diesel
case
at 1252H (
ILJ
);
28I (SA)). For the employee fairness is found in the requirement of
consultation prior to a final decision on retrenchment. This
requirement is essentially a formal or procedural one, but, as is the
case in most requirements of this nature, it has a substantive
purpose. That purpose is to ensure that the ultimate decision on
retrenchment is properly and genuinely justifiable by operational
requirements or, put another way, by a commercial or business
rationale. 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 (an issue on which
it is,
generally, not qualified to pronounce upon), but to pass judgment on
whether the ultimate decision arrived at was genuine
and not merely a
sham (the kind of issue which courts are called upon to do in
different settings, every day). The manner in which
the court
adjudges the latter issue is to enquire whether the legal
requirements for a proper consultation process has been followed
and,
if so, whether the ultimate decision arrived at by the employer is
operationally and commercially justifiable on rational
grounds,
having regard to what emerged from the consultation process. It is
important to note that when determining the rationality
of the
employer’s ultimate decision on retrenchment, 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.”
[35]
As already pointed out, the Court cannot ignore the fact that a
consensus seeking process was not followed by the respondent.
The
applicant was given no feedback during the process. In fact, there is
no evidence before this Court that the applicant was
informed of all
the efforts made on behalf of the respondent to obtain a second
chance to sit for the exam. Consultation has a
specific purpose in
the context of a retrenchment
.
See
in this regard
the
well known decision of the Labour Appeal Court in
Johnson
and Johnson (Pty) Ltd v CWIU
[4]
where the Court
emphasised
the importance of a joint consensus-seeking process and the
obligation of the employer:
“
[26]
The section places some primary obligations on an employer in order
to ensure that an employee is not unfairly dismissed. The
employer
must initiate the consultation process when it contemplates
dismissals for operational reasons (
section
189(1)
; cf
FAWU
and another v National Sorghum Breweries
[1997]
11 BLLR 1410 (LC)
at
1420F–1421B
;
(1998) 19
ILJ
613
(LC) at 623C–I). It must also disclose relevant information to
the other consulting party (
section
189(3))
; it must allow the other consulting party an opportunity
during consultation to make representations about any matter on which
they are consulting (
section
189(5))
; it must consider those representations and, if it does
not agree with them, it must give its reasons (
section
189(6))
.
[27]
But all these primary formal obligations of an employer are geared to
a specific purpose, namely to attempt to reach consensus
on the
objects listed in
section
189(2)
. The ultimate purpose of
section
189
is
thus to achieve
a
joint consensus-seeking process
.
In this manner the section implicitly recognises the employer’s
right to dismiss for operational reasons, but then only
if a fair
process aimed at achieving consensus has failed. This is also
apparent from
section
189(7)
which
provides that the employer must select the employees to be dismissed
on criteria either agreed to, or if that is not possible,
on criteria
that are fair and objective.
[28]
The achievement of a joint consensus-seeking process may be foiled by
either one of the consulting parties. The employer may
obviously
frustrate it by not fulfilling its obligations under
section
189(1)
, (3), (5), (6) and (7). The other consulting party may do
it by refusing to take part in any of the stages of the consultation
process, or by deliberately delaying the whole process (cf
NEHAWU
v University of Fort Hare
[1997]
8 BLLR 1054
(LC)
;
UPUSA
and others v Grinaker Duraset
[1998]
2 BLLR 190
(LC)
at
204D
;
Fowlds
v SA Housing Trust Ltd and another
,
unreported case no J561/98 (LC) at paragraph 11). It may also appear
that any one of the parties simply went through the entire
formal
process with no intention of ever genuinely reaching agreement on the
issues discussed. These different possibilities depend
on the facts
of each particular case.
[29]
The important implication of this is that a mechanical, “checklist”
kind of approach to determine whether
section
189
has
been complied with is inappropriate. The proper approach is to
ascertain whether the purpose of the section (the occurrence
of a
joint consensus-seeking process) has been achieved (cf
Maharaj
and others v Rampersad
1964 (4) SA 638
(A) at 464;
Ceramic
Industries Ltd t/a Betta Sanitaryware
(
supra
)
at 701G–702H (BLLR); 676B–677C (
ILJ
);
Ex
parte Mohuloe (Law Society Transvaal intervening)
1996 (4) SA 1131
(T) at 1137H–1138D).”
[36]
Although it is accepted that an employer need not consult
exhaustively over all the issues stipulated in the 189(3) notice,
it
is accepted that the employer cannot be relieved of its obligation to
consult. Affording an employee one opportunity to write
a letter,
giving no feedback to the letter and thereafter merely retrenching an
employee, even in circumstances where an economic
or commercial
rationale existed, does not in my view constitute compliance with the
obligations placed on the employer by the Labour
Relations Act. See
in this regard:
Whall
v Brandadd Marketing (Pty) Ltd:
[5]
“
[23]
The respondent claims, in essence, that it had no option under these
circumstances but to act with extreme decisiveness. While
an employer
in
extremis
may
not be required to consult as comprehensively over the various issues
stipulated in
section
189(2)
as
it would otherwise be obliged to do, it does not follow that it is
relieved entirely of its obligation to consult with affected
employees.
[37]
I am not persuaded that the respondent had fulfilled this statutory
obligation. It is for this reason that I find that the
dismissal of
the applicant was procedurally unfair. I have decided that it is fair
to afford the applicant compensation equal to
3 months’
remuneration. This remuneration to exclude the cross-border allowance
which the applicant received whilst he was
employed in Botswana. I
make no order as to costs.
Order
[38]
In the event the following order is made:
38.1
The dismissal of the applicant was substantively fair.
38.2
The dismissal of the applicant was procedurally unfair.
38.3
The respondent is ordered to pay the applicant compensation equal to
3 month’s remuneration, which remuneration excludes
the
cross-border allowance.
38.4
There is no order as to costs.
AC
Basson
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant : Mr Visser of Solidarity
For
the Respondent : Advocate Matyolo
Instructed
by : Ms Anika Groenewald Attorneys.
[1]
Act
66 of 1995.
[2]
See:
UPUSA
and others v Grinaker Duraset
[1998] 2 BLLR 190
(LC) at page 204: “
The
obligation to consult placed on the employer by
section
189
places
a correlative duty on the other consulting party to co-operate in
the attempt to reach consensus before the employer ultimately
exercises its right to take the final decision. A union cannot by
claiming its right to information seek unreasonably to delay
a bona
fide retrenchment exercise: Danster v D J and Sun Engineering CC
(1989) 10 ILJ 435 (LAC); Chemical Workers Industrial
Union of SA v
Lennon Ltd (1994) 15 ILJ 1037 (LAC).1 See also NEHAWU v
University of Fort Hare
[1997]
8 BLLR 1054
(LC)
.
The impression created by the evidence as a whole is that this was
precisely what the first applicant was seeking to do.”
[3]
[1998]
12 BLLR 1228 (LAC).
[4]
[1998]
12
BLLR
1209 (LAC).
[5]
[1999]
6
BLLR
62
(LC)