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[2015] ZALCJHB 119
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Solidarity obo Members v Denel (SOC) Ltd (JS305/13) [2015] ZALCJHB 119 (9 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 305/13
DATE:
09 APRIL 2015
Not
Reportable
SOLIDARITY
obo
MEMBERS
.............................................................................................
Applicants
And
DENEL
(SOC)
LTD
...............................................................................................................
Respondent
Heard:
20 February 2014
Delivered:
9 April 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
Solidarity approached the Court to contest the fairness of the
retrenchment of its members viz, DH Treeby and PJTE Venter by
the
Respondent. At the commencement of the trial, the Court was informed
that Treeby had withdrawn from this matter, and that the
dispute only
concerned Venter. Displeased at this turn of events, which the
Respondent only became aware of some two days prior
to the trial, it
was indicated on its behalf that it would pursue wasted costs in
respect of preparations regarding Treeby’s
claim.
Background
and common cause facts:
[2]
Following the retrenchments of the individual applicants, the dispute
was initially referred to the Commission for Conciliation,
Mediation
and Arbitration. Attempts at conciliation failed resulting in a
certificate of outcome being issued and this matter being
brought
before this Court.
[3]
Venter commenced her employment with the Respondent on or about 27
February 1998 until 7 December 2012 when her services were
terminated
due to operational requirements. At the time of the termination of
her services she was employed as an HR Consultant.
The basis of her
claim as captured in the parties’ signed pre-trial minute is
that her retrenchment could have been avoided,
as the Respondent
neglected to explore appropriate alternatives.
[4]
It was pointed out on behalf of the Respondent that its correct
citation is ‘Denel (SOC) Ltd’ and not ‘Denel
Group
(Pty) Ltd’. For the sake of expedience, and it not being
disputed that this was the case, the Court has accordingly
corrected
the Respondent’s citation. The Respondent is a state owned
company consisting of various divisions, viz, Denel
Dynamics (Missile
division), which is its largest part of the business, and Aviation
Division. Venter was employed in the Denel
Dynamics Division.
[5]
A decision was taken in July 2012 to restructure the Respondent's
business based on economic and technological needs. Consultations
were held between management and organised labour including
Solidarity, NUMSA and UASA. The retrenchment process was finalised,
including an agreement on the selection criteria. In selecting
individuals for posts available, an agreed criterion was used in
evaluating them with scores being tallied and compared. Venter’s
overall rating score was found to be low. She had appealed,
and
following evaluation of the procedural and substantive fairness of
the evaluation outcome, it was confirmed that she lacked
the
necessary skills identified as strategically important for the new
structure. When no alternative positions could be found
she was then
retrenched.
[6]
As further captured in the pre-trial minute, the applicants do not
dispute that there was a general need to entrench. It was
common
cause that the retrenchment took place throughout the Respondent’s
divisions. Venter however contends that the retrenchment
was
procedurally unfair. Venter according to the pre-trial minute does
not contend that there were alternatives to the retrenchment
as there
are different skills required and applied in the Respondent's
business. She however contends that she should have been
considered
or invited to apply for alternative positions.
[7]
Venter further contends that the selection criteria were given a
certain weight, which did not truly reflect the importance
of certain
skills in the workplace. In the same vein it is conceded that the
selection criteria was agreed upon was fair, but that
the manner in
which it is applied was unfair. Venter alleges that another employee,
Ayanda Mkatini should have been selected for
retrenchment instead.
Lastly, no dispute is raised in regard to the process leading up to
the retrenchment, it being acknowledged
that meetings took place in
that regard.
The issues for
determination:
[8]
The issue for determination is whether the selection criteria was
applied fairly and correctly, taking into account Venter’s
scores, and as opposed to those of Mkatini, and whether the retention
of most competent skills was afforded enough weight when
the
selection criteria was considered.
The
selection criteria as applied and disputed:
[9]
It was not disputed that a fair and transparent panel of
multi-skilled, senior personnel were used to evaluate the employees
based on the selection criteria as agreed, which was as follows;
9.1
Mandatory normal retirement (>65 years without a package);
9.2
Retention of strategically important skills;
(a) Retention of
most competent skills as per job specification;
(b) Retention of
most competent skills as reflected above will take precedence over
each of the other selection criteria;
9.3 Due
Consideration to the Denel Employment Equity Plan not to prejudice
the ACI percentages per department;
9.4 Termination of
short-term/fixed term contracts (short terms = < 12 months) of
termination dates, without package;
9.5 LIFO.
Venter’s
rating:
[10]
The criteria of LIFO was not an issue in this case. The Respondent
acknowledged Venter’s years of service, experience
and
qualifications in applying the selection criteria and the fact that
she scored high on these areas in her evaluation. She was
however
compared and rated against three other HR consultants. Even though
initially Mkatini was not compared or rated as an HR
Consultant as
her main job output was that of HR Administration, when the two were
compared and evaluated against each other, Venter’s
score was
30 as compared to Mkatini’s 36.
The
evidence:
[11]
This matter in my view should be disposed of based solely on the
evidence of Venter, more specifically in the light of her
concessions
under cross-examination. However for the sake of completeness, the
evidence of witnesses called upon by the Respondent
is summarised in
order to place Venter’s claim in perspective.
[12]
The evidence of Jasmina Keshwar, the Respondent’s Executive HR
Manager and Transformation (Denel Dynamics) was useful
in pointing
out that Denel Dynamics took over the HR Consulting contract to
another division (DeniProp, which is the Respondent’s
property
owning company. Venter’s position as HR Consultant consisted of
three parts, viz, HR Consulting for DeniProp at
the Irene campus
(40%); Skills development in respect of apprentice contracts for DPS
(35%) and Industrial Relations (25%). This
position however became
redundant as a result of Denel Dynamics taking over the HR Consulting
contract to DeniProp. The fact that
Venter’s position had
become redundant as a result of this restructuring was not placed in
dispute. Keshwar further added
that ratings were done by looking at
individual’s curriculum vitae and skills. She conceded that
Venter’s performance
assessment was not looked at.
[12]
Natasha Davies is employed as the Respondent’s Group HR and
Transformation Executive and Keshwar reported to her. She
was
involved in the restructuring process. The Respondent has offices in
Irene and Kempton Park. After the integration of divisions,
some
offices of the Respondent scaled down whilst some of individual
employee’s functions were integrated in other offices.
Davies
further testified that there were four candidates for three HR
positions available after the restructuring process. Mkatini
was not
at that stage compared with other HR Consultants as her position as
HR Administrator was not affected then.
[13]
Davies had participated in the appeal evaluation and had explained
Mkatini’s position during that evaluation process
after Venter
had raised that as an issue. Thus Venter could only be compared and
evaluated against other employees and candidates
whose functions were
HR related. Areas looked at in the evaluation process included
minimum years of service and each candidate’s
role. Davies
under cross-examination conceded that the panel that did the ratings
looked at CVs and did not work with Venter. She
further conceded that
performance assessment was not taken into account when ratings were
done. In regards to a position of PA,
which was raised as an
alternative to retrenchment, Davies’ response was that this was
not considered, as Venter had not
shown any interest in it.
[14]
Thulani Mahlinza is employed as the Executive HRM for Denel Land
Systems, and his division was equally affected by the retrenchments.
He had sat on the appeal panel and had evaluated Venter and Mkatini
on the basis of the agreed criteria, job descriptions, and
CVs. The
line managers of the individuals were also called upon to sit in
these evaluations, as the CVs on their own were not sufficient
for
the purposes of a fair evaluation.
[15]
Rani Padayachee is the General Manager at the Denel Tech Academy, and
Venter reported to him from 2009 until December 2012
in his capacity
as HRM, DeniProp. As a result of the integration of Denel
Personnel Solutions into Denel Aviation, DenelProp
reverted into
Denel Dynamics and 40% of the HR functions fell away. Venter’s
role in Industrial relations became redundant.
As she was a HR
Consultant, her role had to be compared with other HR consultants in
Denel Aviation. Padayachee was consulted and
had given his input on
the selection criteria. Venter had scored low as compared to other
candidates. Her score in relation to
the minimum required
competencies/skills critical to execute outputs (i.e. inherent job
requirements/demonstrated ability) was
28 as compared to others who
had scored 31 and 30. He also confirmed that Mkatini could not be
included in the comparisons as she
was responsible for HR functions
at DeniProp.
[16]
Padayachee further testified that Venter was not keen on a position
related to data capturing as she viewed it as demeaning.
Venter’s
qualifications were more specialised and suitable for Industrial
Relations duties, whilst Mkatini’s was relevant
for the
purposes of HR Administration or consulting. He conceded that Venter
had more experience but this was not sufficient to
assess whether she
added value to the company, as compared to Mkatini, whose
qualifications were relevant, had performed HR functions
and enjoyed
a good relationship with other employees and external clients.
[17]
Venter testified that she had 24 years in the field of HR, with 12
years in administration and 12 as HR Consultant. Since the
dispute is
more in relation to the manner of evaluating her as against others in
ultimately deciding whether the selection criteria
was fairly
applied, her contentions in this regard were as follows;
17.1 The individuals
who evaluated her and other candidates did not know them and did not
ask her in particular to make representations
before coming to their
conclusions.
17.2 The evaluations
were done on the basis of CVs that were currently in their files. Her
CV at the time was in summarised version
and had she been advised
that her CV was to be used for her evaluation, she could have
re-submitted a detailed one.
17.3 Her evaluation
was not signed off by Padayachee and the Managing Director as her
direct superiors. Furthermore, despite having
scored high in her
performance appraisal, this was not used in evaluating her.
17.4 In terms of
qualifications, Mkatini had recently completed an HR Management
course, and had not completed her diploma. Mkatini
only had one year
experience in consultancy.
17.5 The fact that
she was suitable for another position in Bredarsdorp was not
considered, nor was she invited for consideration
for that position
despite having submitted an application. She was only made aware of
that position by an external source, and
she holds the view that
given her experience and qualifications, the position would have been
suitable for her. There was also
another position of HR Business
Partner in Pretoria at the Denel Dynamics division, and she was not
informed of it nor invited
to apply.
Evaluation:
[18]
It needs to be said at the onset that Venter’s case however
collapsed under cross-examination as can be gleaned from
the
following concessions made:
18.1 Her position
and job specification was different to that of Mkatini. They
performed different tasks, and the other three HR
Consultants she was
compared with also had different job specification to hers.
18.2 She did not
dispute that her position had become redundant even though her
contention was that this was not applicable within
the whole of
Denel, and that she should have been moved to another unspecified
division. She however conceded that redundancy justified
retrenchments in the absence of alternatives.
18.3 She had
complained that no interviews were held in terms of selections and
retrenchments in respect of all candidates, and
contended that the
Respondent should have held such interviews. She ultimately however
conceded that there was no obligation on
the Respondent to hold
interviews, as management knew the affected individuals and gave
input in that regard when evaluations were
conducted, and further
that no interviews were held with the other individuals she had
competed with.
18.4 Her source of
discontent was the ratings she had received, more especially as she
was not compared with Mkatini. This was despite
having conceded that
her job specification was different to that of Mkatini.
18.5
She conceded that notwithstanding her protests, she was compared with
Mkatini
[1]
, and that she had
obtained 2 exceptional scores as against 7 obtained by Mkatini. In
this regard, she further conceded that Mkatini
had scored better than
her at 36 as compared to her rating of 30. She further conceded
that the evaluating panel was independent,
and that four individuals
who had assessed her had concluded that her scores should be low. She
further conceded that she had appealed
and the outcome of that appeal
was that Mkatini was a better candidate.
18.6 She further
conceded that she obtained her BA degree late in her career and that
only its labour law component was relevant
when evaluated. In regards
to the failure to take her performance appraisal into account, she
also conceded that even if reliance
were to be placed solely on her
performance appraisal or even jointly with her CV, Mkatini would
still have rated above her.
18.7 In regards to
the position of HR Business Partner, she conceded that she was not
invited to be considered, as she did not meet
the entry level
requirements.
[19]
Despite the best efforts made in the applicants’ written
closing arguments in attempting to portray a sustainable case,
the
above concessions as made by Venter should dispose of her case. There
is no basis for a finding to be made that the Respondent
had unfairly
applied a selection criteria when Venter conceded that there was
indeed a need to retrench; that her position had
become redundant;
that all the other candidates she had competed against for available
positions fared much better than her when
evaluated and compared
against her, and that the evaluations and assessments were conducted
by independent and impartial panels.
Even when compared to her source
of discontent, Venter had conceded that despite her role and job
specification being different
to that of Mkatini, the latter had
fared much better than her even if their CVs and performance
appraisals were taken into account
and compared independently or
jointly.
[20]
As it was correctly pointed out in the Respondent’s written
heads of argument, the methodology used in selecting candidates
for
retrenchment was agreed upon by labour during consultations. Five
senior manages had rated Venter poorly as against three of
her equals
and Mkatini, who was not in any event comparable to her. These
ratings and evaluations were confirmed by a panel, which
Venter
conceded was impartial. She was afforded an opportunity to challenge
the assessments and evaluations, and it was always
going to be
difficult for her to show that the evaluations were unfair when she
did not dispute the impartiality of the panels.
[21]
It is accepted that the duty to show that the agreed criteria as used
was both objective and fair in application rests on the
Respondent.
Even if Venter’s complaint appears to be that she was not
called for an interview during the evaluations, it
is not clear how
this would have assisted her since inputs were sourced from
Padayachee and her immediate superiors already, over
and above her CV
and performance appraisal. The exclusion of interviews cannot have
resulted in unfairness, and even if Venter
had contended that this
was the case, it is not known in what material respects this had
occurred.
[22]
Venter’s complaints about not being considered for alternative
positions are equally without merit in that she either
showed no
interest in the post of PA which ultimately was given to Mkatini, and
furthermore, she could not have been appointed
to the post of HR
Manager or HR Business Partner as she did not meet the requirements
of those posts. Furthermore, I did not understand
her to dispute
Padayachee’s testimony that there was a position of data
capturer that was on offer, which she did not even
consider as she
deemed it to be demeaning.
[23]
In the light of the above considerations, it follows therefore that
Venter or Solidarity for that matter have not established
on a
balance of probabilities that she deserved not to have been
retrenched, or that the Respondent had applied the agreed selection
criteria unfairly. In the circumstances her claim should fail.
Costs:
[24]
In the light of the common cause issues, the concessions made by
Venter and the conclusions reached that there is no basis
for a
finding that Venter was treated unfairly, it is my view that this
application was clearly a non-starter and should not have
seen its
day in Court. Despite it having been conceded that there was indeed a
need to retrench, and that Venter’s position
was redundant, she
nevertheless sought an order of reinstatement and/or compensation. It
is apparent that this application was
motivated by financial gain
rather than pursuing the interests of fairness. The Court having
taken into account considerations
of law and fairness must show its
displeasure at such conduct with an appropriate cost order. It is
accepted that the Court in
considering a cost order should take into
account the on-going relationship between the parties as it exists in
this case. Notwithstanding
that relationship, this Court cannot
however condone nor sanction litigation that borders on frivolous and
vexatious, because this
amounts to an abuse of its process.
[25]
The Respondent as indicated earlier in this judgment also sought a
cost order in respect of the sudden withdrawal of Treeby
from this
matter. In the written heads of argument, it was submitted that the
Respondent was timeously informed of Treeby’s
withdrawal, and
that he basis for withdrawing from the matter was allegedly that an
Afrikaans/English interpreter could not be
found and arranged, and
that Solidarity had on its own attempted to arrange for such an
interpreter without success. It must be
said that this is indeed the
most implausible and lame excuse a party can give for withdrawing
from proceedings, and it probably
the first time that this Court has
ever come across such an excuse.
[26]
It has always been practice in this Court that even if parties have
for some reason not made proper arrangements for an interpreter
to be
available, the Court has always indulged parties and secured the
services of an interpreter where one is required. This excuse
is
pathetic in the extreme, and it can only be confirmation that Treeby
saw no merit in pursuing a case that was doomed to fail
from the
beginning. It is trite that a party cannot simply withdraw from a
matter without making a tender of costs. To this end,
I can see no
reason why the Respondent should not be entitled to its costs in
circumstances where it had opposed and prepared its
defence to
Treeby’s claim.
Order:
i.
The Applicant’s application is
dismissed with costs;
ii.
Such costs shall be inclusive of those
associated with the opposition and preparation for trial in respect
of the DH Treeby’s
claim.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On behalf of the
Applicants: Ms. I Labuschagne & Mr H Perry
(Union
Officials - Solidarity)
On
behalf of the Respondent: Mr. J Crawford of Crawford & Associates
[1]
See
page 37 of the indexed bundle