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[2015] ZALCJHB 95
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Griesel and Another v AAA Home Services CC (JS128/2014) [2015] ZALCJHB 95 (16 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No:
JS128/2014
DATE: 16 MARCH
2015
Not Reportable
In
the matter between:
QUINTON
GRIESEL
......................................................................................................
First
Applicant
CHANTELLE
GRIESEL
............................................................................................
Second
Applicant
And
AAA
HOME SERVICES
CC
................................................................................................
Respondent
Heard: 12 March
2015
Delivered: 16
March 2015
Summary:
Claim for unfair dismissal following a retrenchment based on alleged
operational requirements; Respondent delivering a
notice of intention
to oppose but no response to the statement of case; trial Respondent
raising a point
in limine
that the matter was settled between the parties; On the version
before court the alleged settlement found to be non-existent; Matter
proceeding by way of default; Claim succeeding with costs
JUDGMENT
VOYI, AJ
[1]
This
is a claim for unfair dismissal following the retrenchment of the
Applicants on account of alleged operational requirements.
The
Applicants are both former employees of the Respondent.
[1]
They were retrenched on 29 November 2013.
[2]
The Applicants’ statement of case was
filed with this court on 28 February 2014. Based on the affidavit
filed in support of
proof of service, the statement of case was
served on the Respondent by fax at approximately 09:04 on 25 February
2014.
[3]
On 28 March 2014, the Respondent filed its
notice of intention to oppose the Applicants’ claim.
[4]
The Respondent had a period of ten (10)
days from the date of service of the statement of case to deliver its
response thereto.
This is in terms of Rule 6(3)(c) of the Rules of
the Labour Court. However, no response was delivered to the statement
of case
as it is required by the said Rule 6(3)(c).
[5]
In light of there being no response to
their statement of case, the Applicants filed an application for
default judgment on 9 April
2014. It would appear that this
application was not pursued any further.
[6]
On 22 July 2014, the parties filed the
minute of their pre-trial conference on the matter. The minute
reflects that the Respondent
was represented at the conference by its
attorney, being Mr Craig Harvey. In the minute filed and under the
rubric ‘The Resolution
of Preliminary Points’, it is
recorded that the Respondent ‘…will seek condonation for
the late service and
filing of its response to the applicant’s
statement of claim’. That never occurred. The Respondent never
filed its
response to the Applicants’ statement of case.
[7]
When the matter came before this court for
trial, there was appearance for the Respondent. The Respondent’s
Counsel, Advocate
T L Jacobs requested a postponement of the matter.
[8]
The application for a postponement, moved
orally from the bar, was rather brief and it alluded to witnesses
either having been unallocated
or not being available for the
hearing. There was even reference to a witness being ill to attend
court.
[9]
Having heard the application, I took the
view that it was simply destitute of merit and I refused same. The
application was, to
me, a transparent manoeuvre to frustrate
finalisation of the matter. If there was a genuine challenge with the
availability of
witnesses, nothing prevented the Respondent from
bringing a substantiated written application for a postponement of
the matter.
[10]
After having refused the application for a
postponement, the Respondent’s Counsel indicated that it was
the Respondent’s
desire to argue, based on the Applicants’
own papers, a preliminary point
in
limine
. Although this was not
foreshadowed in the pre-trial minute, I allowed the Respondent to
argue its preliminary point.
[11]
I made this allowance alive to the fact
that the Respondent was, effectively, in default and not properly
before me in light of
the fact that no response had been delivered by
it. It occurred to me that if indeed the point
in
limine
was evident from the Applicants’
very own papers, I should, at the very least, be alerted to it.
[12]
It was the Respondent’s stance, in
support of its preliminary point, that, on the Applicants’ own
version, the matter
was amicably settled between the parties. I duly
considered the relevant paragraphs in the Applicants’ statement
of case
from which the Respondent’s Counsel was arguing that
settlement of the matter becomes evident.
[13]
Having heard the Respondent’s
Counsel, I had no hesitation in concluding that, on the Applicants’
own version, no settlement
of the matter was reached. At best, there
were discussions on an amicably resolution of the matter. These
settlement discussions
collapsed when, on the Applicants’
version, the ‘…Respondent reverted in a threatening
manor stating that the
First and Second Applicants should not mess
with him (more vulgar language was used), he will see them in court
and it would take
a long time before they see any money.’
[14]
Having found that the Applicants’ own
version did not support the allegation that the matter became
settled, I rejected the
Respondent’s preliminary point
in
limine
.
[15]
I, thereafter, proceeded with the matter as
the hearing of default judgment application as contemplated by
paragraph 10.1.6 of the
Practice Manual of the Labour Court of South
Africa.
[16]
In the default judgment hearing, both
Applicants testified. It was their case that they were unfairly
retrenched by the Respondent.
They testified as to the sequence of
events that led to them being ultimately dismissed by the Respondent.
There was no opposing
version to contradict their evidence. I duly
accepted their version of events and, to me, such version reveals a
clear instance
of an unfair dismissal.
[17]
The Applicants testified that their
retrenchment came after they stood their ground to allegations that
the First Applicant was
using prohibited substances. Immediately
after they insisted on being told who was spreading these rumours
about the First Applicant,
the Applicants were called into a meeting
wherein they were informed that the process pertaining to their
possible retrenchment
was being commenced with.
[18]
According to the Applicants, there were
three meetings that were held regarding their retrenchment. What to
me, renders, Applicants’
dismissal unfair is their
uncontradicted evidence that two new employees were employed in their
respective positions whilst the
retrenchment process was underway.
[19]
It seems that the Respondent could not wait
to replace the very employees it was retrenching ,purportedly, on the
basis that it
had financial difficulties. That, on its own, renders
the dismissal unfair.
[20]
The Applicants also disputed that there was
an economic rationale for their retrenchment. During the so-called
consultations, they
went as far as pleading with the Respondent to,
at least, retrench one of them if the employer was hell-bent on
proceeding with
the retrenchment regardless. It is also strange that
the retrenchment exercise only targeted the two Applicants and no one
else.
[21]
On the evidence before me, I, therefore,
come to the considered conclusion that the dismissal of the
Applicants, by the Respondent,
was both substantively and
procedurally unfair. The Respondent had made up its mind to get rid
of the Applicants. With the so-called
consultation meetings, the
Respondent was simply going through the motions. The retrenchment
process was simply used as a pretext
to do away with the two
Applicants.
[22]
The Applicants are, accordingly, entitled
to the relief they seek. The Applicants did not ask for reinstatement
but for compensation.
Considering the unfair manner in which they
were dismissed, they definitely deserve the compensation they seek.
The appropriate
relief under the circumstances would be compensation
equivalent to six (6) months’ salary for each. There is no
reason why
costs should not follow the results. The Applicants had to
come before this court in order to obtain relief. They should be
reimbursed
for the legal costs incurred to that end.
[23]
I, therefore, order as follows:
(i)
The Applicants’ dismissal, by the
Respondent, was both substantively and procedurally unfair.
(ii)
The Respondent is ordered to pay to the
Applicants compensation equivalent to six (6) months’ salary
each, calculated as follows:
(a)
for the First Applicant : R55,425.60 (being
R2309.40 x 4 x 6); and
(b)
for the Second Applicant : R55,425.60
(being R2309.40 x 4 x 6)
(iii)
The Respondent is ordered to pay the
Applicants’ costs.
N P Voyi
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Advocate D N Lundström
Instructed by:
Ken McDade Attorneys
For
the Respondent: (In default)
[1]
The
First Applicant was employed on 7 May 2013 and the Second Applicant
on 28 November 2012