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[2015] ZALCJHB 474
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Kgalegi v Blinkwater Mills (Pty) Ltd (JS502/11) [2015] ZALCJHB 474 (26 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 502/11
Not
Reportable
In
the matter between:
PATRICK
KGALEGI
Applicant
And
BLINKWATER
MILLS
(PTY) LTD
Respondent
Heard:
20 October 2014
Delivered:
26 March 2015
JUDGMENT
Nkutha-Nkontwana
AJ
Introduction
[1]
In
this matter, the Applicant is challenging his dismissal that occurred
on 10 March 2011 on the basis that it was substantively
and
procedurally unfair. The issues for determination are accordingly as
follows:
1.1
Whether
there was a reason to retrench the Applicant.
1.2
Whether
the respondent did comply wi
th
the provisions of
section 189
of the
Labour Relations
Act of 1995
, as amended (“LRA”).
Factual
background
[2] The
Applicant was employed by Respondent on 1 June 2009 in a position of
a Human Resources (“HR”)
Clerk. His services were
terminated on 10 March 2011 due to the Respondent’s operational
requirements and at that time he
was earning R7 560.00 per
month.
[3] On
17 January 2011, the Respondent handed the Applicant with its notice
of intention to retrench him due to
the centralisation of
administration functions including HR.
[4] The
first consultation took place on 21 January 2011. The parties agreed
that, since the Applicant had already
applied for a position of a
Depot Auditor, the consultation be postponed in order to assess his
suitability for that position.
[5] As
part of his assessment for the Depot Auditor position, the Applicant
wrote a written test prepared by Mr
Raymond Le Roux (Le Roux”),
the Respondent’s Financial Manager, who was its only witness in
these proceedings. That
was followed by a field experiment for a week
(24 to 28 January 2011) where the Applicant job shadowed other Depot
Auditors.
[6] The
second consultation was held on 3 March 2011. The Respondent
communicated to the Applicant that he was
found unsuitable for the
position of Depot Auditor. At that point, the Applicant availed
himself for a position of Area Controller
which had been identified
and offered as an alternative to dismissal.
[7] The
position of Area Controller became vacant due to the dismissal of Mr
Solomon Mogoani (“Mogoani”),
the then incumbent, for
illness on 24 December 2010. On 3 March 2011, the consultation
meeting was adjourned in order to allow
the Respondent time to
receive further medical reports regarding Mogoani’s medical
condition.
[8] On
10 March 2011, the Applicant was served with a notice of termination
of his services due to operational
requirements. The Applicant seeks
retrospect reinstatement.
Respondent’s
case
[9] Mr
Le Roux, the only witness called by the Respondent, testified that he
is based at the Respondent’s
head office in Middleburg. Whilst,
the Applicant was based in the Stoffberg dealing with HR functions
such as filing of provident
fund applications, employees’
personal files and leave applications.
[10] Respondent’s
head office used to be in Stoffberg but relocated to Middleburg 12
years ago. It became
cumbersome to operate from a small town due to
communication problems. There was a delay in receiving information
from the Applicant
for purposes of attending to queries from families
of the deceased employees or for credit applications.
[11] As
a result, the Respondents senior managers decided to move the HR
functions to head office. The Applicant
was the only person affected
since other employees in Stoffberg office were site specific. His
position fell under administration
and the functions thereto could be
performed from head office.
[12] During
the consultation meeting of 21 January 2011, the following reasons
were given as the basis for the
decision to centralise the HR
function that was performed by the Applicant:
12.1 The
issue with communication between head office and Stoffberg causing
delay in,
inter alia
, decision-making and control;
12.2 Possible
future restructuring; and
12.3 That
the work load and the position does not justify it being a full time
occupied position.
[13] The
possibility of alternative positions was discussed during that
consultation meeting and the Respondent
identified three vacant
positions (i.e. Cash Book Clerk, 2, Depot Auditors, and Area
Controller).
[14] These
alternative positions were discussed extensively during the
consultation meeting of 3 March 2011. The
Respondent maintained that
both Depot Auditor and Cash Book Clerk positions needed an accounting
background which the Applicant
lacked and hence he was found
unsuitable. Regarding the Area Controller position, Mogoani wanted to
keep his position despite his
medical report. However, it was also
discovered that the incapacity forms were never filed with the
provident fund and it was the
responsibility of the Applicant to do
so. Mogoani was finally declared incapacitated in 2013.
[15] There
were no other alternative positions at that time and the Applicant’s
position did not warrant
being full time. He had realised that the
Applicant was spending most of his time at work visiting pornographic
sites and chatting
with colleagues. The Department is currently well
run than ever before without the Applicant.
[16] Reinstatement
would not be feasible since there are no suitable, vacant positions
for the Applicant.
[17] Under
cross-examination, Le Roux testified as follows:
17.1
He
had no proof to support the Applicant’s evidence that he
reported the faulty Telekom line and to no avail.
17.2
Restructuring
meant moving the Applicant’s functions to head office for easy
management and control.
17.3
Mogoani’s
services were terminated on 24 November 2010 due to illness as
reflected in his certificate of service. Had the
provident fund found
him fit for service, the Respondent would have reinstated him.
17.4
He
could not produce the Applicant’s job description and had no
evidence to prove that his tasks had changed to an extent
that the
position became insignificant.
17.5
The
Area Controller position was never filled because the provident fund
decision came in 2013.
17.6
The
Applicant was not considered for a vacant position of a Controller
Packing Position which was advertised on 10 March 2011 because
he had
no technical background.
[18] The
Applicant’s service was accordingly terminated on 10 March
2011.
The
Applicants case
[19] The
Applicant testified that he was handed with a notice of the
Respondent’s intention to retrench him
on 17 January 2011. On
19 January 2011, he applied for a vacant position of Depot Auditor.
The first consultation meeting held
on 21 January 2011 focused on
that position and Le Roux subjected him to a test in order to assess
his abilities. Subsequently,
he was allowed to job shadow the other
Depot Auditors for a week.
[20] He
was of the view that he managed to demonstrate his capabilities even
though he could have benefited from
a longer period of training. On 3
March 2011, Le Roux told him that he was not suitable for that
position since he had no financial
background.
[21] To
his surprise, the position of Area Controller, which he had
categorically availed himself for, was removed
as an alternative. Le
Roux told him that Mogoani had asked for his job back and hence they
had to wait for the medical report in
order to decide whether to
re-employ him.
[22] The
consultation meeting of 3 March 2011 was adjourned with an
understanding that it would be reconvened in
order to finalise the
process. However, on 10 March 2011, he was served with a termination
letter.
[23] On
the same day, 10 March 2011, the Respondent advertised more vacant
positions which he qualified for. He
applied for a Controller Packing
position which required a standard 10, a drivers’ licence and
supervisory skills. He was
expecting the Respondent to prefer him for
appointment in honouring the assurance to re-employ him made in his
letter of termination.
[24] It
was only in July 2011, after persistent inquiring about the said
recruitment, that he learnt that he did
not succeed. The Reason given
by the Respondent was that it had upgraded its machines and as such
there was no training capacity
internally. However, the person who
was employed in his stead was trained by another colleague. The
Respondent had the machines
for the first time and its decision not
to employ him was inconsistent and unfair.
[25] Under
cross-examination, he testified as follows:
25.1
He wanted to be reinstated because the Area Controller position is
still vacant and suitable. Even though he is currently unemployed,
he
did some private work for the SAPS from July 2012 to July 2013.
25.
2 His position was not redundant per se, Le Roux conceded that his
duties were given to another employee at head office.
25.3
The communication of documents was done through a fax line.
25.4
Even though he was not qualified for the Depot Auditor position, he
had an expectation that he would be given an opportunity.
He made
himself available for the Area Controller position and was willing to
relocate to Burgersfort.
25.5
The delay of more than three year in prosecuting this matter was
caused by the Respondent’s attorneys by refusing to
sign the
pre-trial minutes. They were difficult and tried to bully him since
he is unrepresented. The reason why the matter did
not proceed on 22
August 2013 is because both parties did not receive the notice of set
down. As a result, the matter was removed
from the roll by agreement
between the parties.
Submission
[26]
The
parties filed detailed written submissions, and as such,
I
do not propose to set them out in this judgment, save to refer to
those that are pertinent in contextualising this judgment.
Applicable
legal principles
[27]
Whi
lst
section
189
of
the
LRA recognises the right of the employer to dismiss employees for
operational reasons, the employer anticipating retrenchment
is
enjoined to consult with the union or employees likely to be affected
by the retrenchment.
[1]
[28]
The
employer has a responsibility not to dismiss an employee for
operational requirements if that can be avoided. Hence the employer
and the employees or their representatives must attempt to reach
consensus on appropriate measures to avoid the anticipated
dismissals.
[2]
The
employer is required to disclose to the other consulting party in
writing the reasons for the proposed dismissals and
the alternatives
that the employer considered before proposing the dismissals and the
reasons for rejecting each one of those alternatives.
[3]
[29]
Accordingly,
since operational requirements constitute the so-called "no-fault
terminations, there is an expectation that dismissal
would be a
measure of last resort.
In
Oosthuizen
v Telkom SA Ltd,
[4]
the
Labour Appeal Court stated that:
‘
This
obligation also includes that, where the employee may need some
training in order to be able to perform the duties attached
to an
alternative position, the employer
should
afford the employee the opportunity to get such training. Naturally,
this has to be within reason because, obviously, the
employer should
also not be burdened with an exercise that may have undue cost
implications. I note that paragraph 21 of ILO Recommendation
166, the
Termination of Employment Recommendation, 1982 provides as follows:
“
The
measures which should be considered with a view to averting or
minimising termination of employment for reasons of an economic,
technological, structural or similar nature might include, inter
alia, . . .
internal
transfers, training and retraining
, . . .’
(my underlining).
[30]
Section
189(2)
o
f
the LRA provides that:
‘
The
employer and the other consulting parties must, in the consultation
envisaged by subsections (1) and (3), engage in a meaningful
joint
consensus-seeking process and attempt to reach consensus on-
(a)
appropriate
measures-
(i)
to
avoid the dismissals;
(ii)
to
minimise the number of dismissals;
(iii)
to
change the timing of the dismissal; and
(iv)
to
mitigate the adverse effects of the dismissals;
(b)
the
method for selecting the employees to be dismissed; and
(c)
the
severance pay for dismissed employees.’
[31] It
is, therefore, imperative that, in
the
event that the consulting parties are unable to find a solution to
avoiding the retrenchment, they continue to consult on the
timing of
the retrenchment, ways to minimise its adverse effect, selection
criteria and severance pay.
[5]
Analysis
[32] The
Applicant is challenging the substantive fairness of his dismissal on
the ground that the Respondent failed
to prove that it was for a
reason related to its operational requirements.
[33] The
Respondent gave three different explanations to rationalise the
retrenchment. Firstly, in its notice to
commence consultation, it
stated that it was restructuring the department. Secondly, in the
Respondent’s written response
to the Applicant queries, it
stated that it wanted to have a better control of the department and
save money since the Applicant’s
workload did not justify a
full time position. Thirdly, during consultation meeting of 21
January 2014, it stated that it was due
to communication problem
between Stoffberg and head office, possible future restructuring and
workload did not justify full time
position.
[34] It
is my view that nothing turns on the Respondent’s
centralisation of administration department and
the occasioned move
of HR functions to head office since, ordinarily, the Applicant could
have relocated offices as well. It would
seem that the reason for not
affording the Applicant an opportunity to relocate with his position
is the Respondent’s decision
that he was not gainfully
employed.
[35] Le
Roux testified that he concluded that Applicant’s workload did
not justify a full time position after
he had noticed that he spent
considerable time browsing pornographic sites and was always chatting
with colleagues instead of working.
However, he conceded under
cross-examination that the Applicant had no job description and as
such there was no evidence to prove
that the job content had been
changed and the extent of those changes.
[36] In
contrast, it is common cause that, in addition to HR file management
tasks, the Applicant assisted the
site with recruitment, disputes
resolution, disciplinary hearings and representation at the CCMA.
However, The Respondent was adamant
the all these tasks could be
executed from head office by another member of the department in
addition to their normal day-to-day
activities.
[37] The
above Respondent’s attitude gives credence to the Applicant’s
evidence that his job was never
redundant but was given to someone
else unduly. To the extent that the Respondent sought to justify
terminating the Applicant’s
employment by referring to the
allegations of misconduct, it is my view that it ought to have
conducted a disciplinary hearing
instead of retrenchment. Therefore,
its conduct in this regard offended the tenet that a retrenchment is
a no fault termination.
[38]
The
Respondent
submitted,
with references to Labour Appeal Court judgement in
Sacwu
v Afrox Ltd,
[6]
that
fairness of retrenchment is not dependent of it being used as a last
resort. This submission is correct, however the
Court went further to
state that:
‘
By
making fairness of the dismissal a matter of proof
(sections
188(1)(a)
and
000
000">
192
(2)),
the LRA has made the assessment of fairness dependent on the factors
proved and canvassed in evidence in court. This imposes
a discipline
upon the parties to the dispute and the person hearing the case. If
an employer wishes to show that it considered
appropriate options
other than dismissal it must present evidence to that effect and
explain why it chose a particular course and
not another. If an
employee wishes to challenge that evidence it must do so by proper
cross-examination on the relevant issues
and, if considered
necessary, by leading rebutting evidence. If this shows up the
untenability of the employer’s position,
it will have a
material effect in the final assessment of fairness. The presiding
officer’s assessment of the fairness or
otherwise of the
dismissal will also be dependent on the evidence presented before him
or her.’
[39] In
Decision
Surveys International (Pty) Ltd v Dlamini and Others,
[7]
the
Court stated that:
‘
The
ultimate decision to retrench must be fair. In this context, fairness
means that the ultimate decision to retrench must “properly
and
genuinely” be justified by operational requirements. The
ultimate decision must be “genuine and not merely a sham”
(SACTWU & others v Discreto (supra) at paragraph 8). The court’s
function, therefore, is not merely to determine whether
the
requirements for a proper consultation process have been followed and
whether the decision to retrench was commercially justifiable.
There
may be other options open to the employer other than retrenchment
such as short time, casual employment, or demotion.
If
the employer resorts to retrenchment when alternatives to
retrenchment are available, it cannot be said that the ultimate
decision
to retrench is necessarily fair. The court will, therefore,
examine the reasons advanced for retrenchment in order to determine
whether the ultimate decision to retrench is genuine and not a sham.
However, this is not to say courts are to second guess the
commercial
or business efficacy of the employer's decision. Nor is the enquiry
whether the best decision was taken . . . The enquiry
is whether the
retrenchment is properly and genuinely justified by operational
requirements in the sense that it was a reasonable
option in the
circumstances.’
[40] There
is no evidence that the Respondent did consider, whether on its own
prior to or during the consultation
meetings, a possibility of
affording the Applicant an opportunity to work part-time or in any
other manner that would commensurate
with the job content as means of
avoiding retrenchment.
[41] Also,
there were three vacancies at the commencement of the consultation
with the Applicant and only two were
seriously considered during
consultation.
[42] Even
though the Applicant conceded under cross-examination that the Depot
Auditor position needed financial
qualification, he was adamant that
he had demonstrated potential and with necessary training he could
have acquired the necessary
technical knowledge. It is my view that,
given the criticalness of financial positions in any business, it is
imperative that employees
in that department should at least have
some form of formal qualification in finance. Therefore, the
Respondent correctly submitted
that any attempt to train the
Applicant in that regard would have been burdensome.
[43] The
only suitable position that had to be considered was that of the Area
Controller. Le Roux conceded under
cross-examination that Mogaoni was
dismissed on 24 November 2010 and due to illness, as reflected in his
certificate of service
he had never returned to work since then.
There is no evidence from Mogoani’s doctor confirming a
subsequent change in his
medical condition so as to qualify him for
reinstatement. Therefore, it is highly improbable that he had ever
requested to be reinstated.
[44] Le
Roux testified that the position was never filled because the
provident fund finally approved Mogaobi’s
medical boarding in
2013. Therefore, it is disingenuous of the Respondent to submit in
its written submissions that this position
was never filled due to
restructuring.
[45]
There
is no evidence to establish precisely why the Respondent bailed out
of consultation without consensus
.
Furthermore, t
here is no evidence to
establish a cogent reason for not appointing the Applicant to
the
Controller Packing position which
was vacant at the time of his termination.
[46] It
is my view, based on above, that the Respondent frustrated every
available opportunity it had had to avoid
the Applicant’s
retrenchment. Therefore, the consequential retrenchment was
irrational and unjustifiable.
[47]
The
Applicant is also challenging the fairness of the procedure adopted
by the Respondent leading to his retrenchment. The principles
on
procedural
fairness
of the retrenchment are contextualised in
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
[8]
are
pertinent.
[48]
Firstly,
the court stated that the need to consult before a final decision is
not only practical but constitutional in that “consultation
provides employees or their union with a fair opportunity to make
meaningful and effective proposals relating to the need for
retrenchment or if such need is accepted, the extent and
implementation of the retrenchment process…It satisfies
principle
because it gives effect to the desire of employees, who may
be affected, to be heard and helps to avoid or at least reduce
industrial
conflict…”
[49]
Secondly,
the court stated further that “implicit in the requirement of a
fair opportunity to make a meaningful proposal is
the duty to give
employees reasonable notice of the proposed retrenchment. Such notice
must allow them time and space to absorb
the shock brought about by
the daunting prospect of losing their jobs. As a general proposition,
no employee can reasonably be
expected to constructively and
effectively engage the employer on such a serious matter from the
very minute the bad news is broken
to him or her. He or she must be
afforded the opportunity to come to terms with the situation, to
reflect on the matter, to seek
advice and prepare for consultation
and only then can a fair and genuine consultation begin...”
[50]
Lastly,
the court stated that “the final decision to retrench must be
informed by what transpired during consultation. That
is why
consultation must precede the final decision. The requirement of
consultation is essentially a formal or procedural one,
but it also
has a substantive purpose. That purpose is to ensure that such a
decision is properly and genuinely justifiable by
the operational
requirements or by a commercial or business rationale.”
[51]
It
is common cause that the second consultation held on 3 March 2011 was
adjourned without consensus on issues discussed and finality
on the
process. There is no evidence that there was compliance by the
Respondent with
section
189(2)
of
the LRA subsequently.
[52]
Conversely,
on 10 March 2011 the Respondent terminated the Applicant’s
services ‘due to the fact that no viable available
alternatives
to retrenchment meeting could be found.’ I have already
indicated above that there were other vacancies available
but were
never offered to the Applicant. However, even if no alternative
vacancies were available, the Respondent ought to have
continued to
consult on timing of the retrenchment, ways to minimise its adverse
effect, selection criteria and severance pay.
[9]
[53]
Clearly,
the Respondent did not attempt to engage in a meaningful joint
consensus seeking process as it bailed out of the consultation
process. I note that the Respondent was assisted by Ms Visagie, a
labour consultant, during the consultation meetings. Therefore,
it
ought to have been better advised about the legal requirements. In
light of the fact that the consultation was patently inadequate,
the
consequent dismissal of the Applicant was procedurally unfair.
[10]
Conclusion
[54]
In
the premises, the Applicant’s dismissal was both substantively
and procedurally unfair.
Relief
[55] The
Applicant testified that he would like to be reinstated. In
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[11]
the
Constitutional Court,
in
dealing
with reinstatement, stated that:
‘
Reinstatement
is the primary statutory remedy in unfair dismissal disputes. It is
aimed at placing an employee in the position he
or she would have
been but for the unfair dismissal. It safeguards workers’
employment by restoring the employment contract.
Differently
put, if employees are reinstated they resume employment on the same
terms and conditions that prevailed at the time
of their dismissal.
As the language of
section
193(1)(a)
indicates,
the extent of retrospectivity is dependent upon the exercise of a
discretion by the court or arbitrator. The only
limitation in this
regard is that the reinstatement cannot be fixed at a date earlier
than the actual date of the dismissal. The
court or arbitrator may
thus decide the date from which the reinstatement will run, but may
not order reinstatement from a date
earlier than the date of
dismissal. The ordinary meaning of the word “reinstate”
means that the reinstatement will
not run a date from after the
arbitration award. Ordinarily then, if a Commissioner of the CCMA
order the reinstatement of an employee
that reinstatement will
operate from the date of the award of the CCMA, unless the
Commissioner decides to render the reinstatement
retrospective. The
fact that the dismissed employee has been without income during the
period since his or her dismissal must,
among other things, be taken
into account in the exercise of the discretion, given that the
employee’s having been without
income for that period was a
direct result of the employer’s conduct in dismissing him or
her unfairly.’
[56] There
is no evidence led by the Respondent to indicate that Applicant’s
reinstatement would not be reasonably
practicable.
[12]
Conversely,
the position of Area Controller is suitable and available. However,
the Respondent submitted that the extent of
reinstatement should be
limited due to the delay in prosecuting this matter attributable to
the Applicant. Indeed, there is a delay
of more than three years but
the Applicant attributed the delay to the Respondent’s
attorneys who sought to take advantage
of him because he was
unrepresented.
[57] It
is my view that the Respondent’s attorneys ought to have
stepped in and assisted the Applicant to
drive the process; firstly,
as officers of the Court and, secondly, for expeditious finalisation
of this matter in the interest
of their client. Even though the
Applicant is unrepresented, I noticed that he attended to the matter
with diligence and unparalleled
skill for a person who is not legally
trained. I, accordingly, have no reason to penalise him for the
delay.
Costs
[58] The
issue of costs does not arise as the Applicant is unrepresented.
Order
[59] In
the circumstances, I make the following order:
1. The
Applicant’s
dismissal is both substantively and procedurally unfair;
2.
The
Respondent is ordered to reinstate the Applicant to his former post
retrospectively to 10 March 2011, on the same terms and
conditions of
employment as previously held and without the loss of any
remuneration or benefits;
3. The
Respondent is ordered to offer to the Applicant the position of Area
Controller as an alternative to retrenchment;
and
4. There
is no order as to costs.
Nkutha-Nkontwana
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT: Self represented
FOR
THE RESPONDENT: Adv. R Grundlineh
Briefed
by OJ Botha Attorneys
[1]
Section
189(1)
of
the LRA.
[2]
Section
189(2)(a)(i)
of
the LRA.
[3]
Section
189(3)(b).
[4]
[2007]
JOL 20249
(LAC)
at para 5.
[5]
Adams
v DCD-Dorbyl Marine (Pty) Ltd
(2011)
32
ILJ
2472
(LC) at para 10.
[6]
[1999]
10 BLLR 1005
(LAC)
at para 43.
[7]
[2002]
ZACC 27
;
[1999]
5 BLLR 413
(LAC)
at para 27.
[8]
[2000]
2 BLLR 138
(LAC)
at para 18.
[9]
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
(1999)
20 ILJ 89 (LAC) also reported at
[1998] 12 BLLR 1209
(LAC).
[10]
Broll
Property Group (Pty) Ltd v Du Pont
(2006)
27 ILJ 260 (LAC).
[11]
[2008]
12 BLLR 1129
(CC)
at para 36.
[12]
Section
193(a)
and
(b) of the LRA.