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[2015] ZALCJHB 123
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Raftopulos v Van De Venter Mojapelo Inc Attorneys (J 1433/09) [2015] ZALCJHB 123 (15 April 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA,
IN JOHANNESBURG
CASE NO: J 1433/09
DATE:15 APRIL 2015
Not Reportable
In the matter between:
LAUREEN
RAFTOPULOS
.....................................................................................................
Applicant
And
VAN DE VENTER MOJAPELO INC
ATTORNEYS
........................................................
Respondent
Delivered: 15 April 2015
Summary:
(Trial – alleged
unfair retrenchment – s 189 – alleged mala fides by
employer in relation to consultation process
– retrenchment
allegedly predetermined – employee resigned to retrenchment as
inevitable – engagement by both
parties not constructive –
employee raising matters in trial which should have been raised in
consultations - not clear
that employer established there were no
viable alternatives for applicant or why applicant could not have
been considered for one
or other of two recently available posts –
not clear that the respondent itself attempted to try and avoid the
applicant’s
retrenchment – disciplinary proceedings
initiated against applicant shortly after she declined to agree to
voluntary severance
seemingly excessive reaction to complaint and
possibly pursued with a view to pressurising the applicant to agree
to voluntary
termination – general need to retrench established
– fair and objective reasons for Raftopolous’s selection
not
established – employer approaching consultation with a view
to finalising Raftopolous’s retrenchment not with a view
to
avoiding it if feasible – employee’s failure to be more
proactive in consultation process only partly justified
by employer’s
initial approach).
JUDGMENT
LAGRANGE, J
Introduction
[1] In this matter, the applicant, Ms L
Raftopolous (‘Raftopolous’) claims that she was
substantively and procedurally
unfairly retrenched by the respondent,
a firm of attorneys (‘VVM’). In short, the applicant
claims that the consultation
process in terms of section 189 of the
Labour Relations Act, 66 of 1995 ( the LRA’) was a sham because
the decision to retrench
her had been decided in advance. Not only
was it a sham, but the respondent’s minutes of the consultation
meetings were fabricated
to create the impression that the process
was bona fide and above board. The applicant also contended that VVM
had also sought
to undermine the consultation process by dismissing
her for misconduct while the process was under way, but delaying the
outcome
of the appeal to pressurise her to conclude a voluntary
severance agreement. On the question of substantive unfairness, the
applicant
accepted that in general, there was a need for
retrenchment, but believes that she was unfairly refused alternative
employment
even though she expressed an interest in doing certain
other work and even though that would have entailed a wage cut. The
applicant
also claimed that the respondent had seized on pending
disciplinary proceedings as a means of pressurising her to accept
voluntary
retrenchment.
[2] The respondent defended its conduct
of the consultation process and maintained that it had clearly
applied LIFO as a selection
criteria to all staff working on the
project known as the City Council of Pretoria project (‘CCP
Project’), which was
one of the respondent’s biggest
clients. This contract came to an end when the respondent’s bid
to secure a renewal
of the contract failed. The applicant had been
the project manager of the CCP Project. The respondent also
maintained that it had
offered her a suitable alternative position,
as it had done with other staff, but she had refused the alternative.
It further denied
that the applicant had the necessary skills to fill
the position of either of two other employees, whom she believed she
could
have replaced namely, Ms S Basson (‘Basson’) and Mr
A van der Walt (‘van der Walt’).
[3] The trial proceedings took place on
27, 28, 29 February and 10 and 11 June 2013. The trial was due to
start on 18 March 2013
but owing to the notice of set down having
been sent to the applicant’s attorney’s previous address,
it had to be postponed
on that occasion. Difficulties were
experienced in locating the record for initial proceedings which
regrettably delayed this judgment.
Ms L Pretorius (neé Roos)
and Ms T Henwood (neé Van der Walt), a labour consultant from
Labournet and HR Manager
of the respondent respectively, gave
evidence for the respondent. Raftopolous testified on her own behalf.
The sequence of events and material
evidence
[4] What is set out below does not
purport to be a comprehensive summary of all the testimony. The
sequence of events is by and
large common cause. It must be said that
the parties’ respective efforts at narrowing the issues in
dispute in the pre-trial
minute was perfunctory and did not reflect
the diligence to be expected from the professionals representing
them.
[5] The applicant originally rendered
services to the respondent from September 2007 to May 2008. There is
some dispute about whether
she was an employee at this stage or an
hourly paid consultant. Be that as it may, she was employed as a
Project Manager and Data
Analysis (sic) from 1 May 2008 on a monthly
salary of R 41,700. The key responsibilities and job outputs were
described in her
contract of employment as: (a) analysing data; (b)
mapping out new process of clients; (c) implementing the processes;
(d) liaising
with clients, and (e) reporting. Essentially, this work
related to the IT design and management of the clients’
debtor’s
books. Approximately 28 people were affected when the
firm was unsuccessful in re-tendering for the CCP project when the
initial
contract expired. Other functions affected by this were staff
working on emoluments attachments, tracing, data processing and
Raftopolous.
Preliminary interactions between
Henwood and Raftopolous
[6] Between 6 and 16 October 2008,
Raftopolous was issued with a notice of “Contemplated
Retrenchments/Redundancy” by
Pretorius. Henwood testified that
staff was given the option of following the consultation process or
entering into a voluntary
retrenchment agreement from the
commencement. Labournet was appointed to manage the process.
[7] Raftopolous claimed that it was
during the first occasion that Henwood spoke to her about
retrenchment on 10 October 2008 that
she explained the two
alternative processes available: either to take a voluntary severance
package, which meant she would not
have to work notice, or to follow
the consultation process for a month and then be retrenched.
Raftopolous claimed that she had
been called to Henwood’s
office and asked if she knew about the retrenchments and was told
that she had been earmarked for
retrenchment.
[8] According to Raftopolous, she had
gone back to speak to Henwood at Henwood’s request on 13
October 2008. Raftopolous asked
her to explain both ‘options’
again. When she asked what would happen next, Henwood issued her with
the voluntary severance
agreement and told her that if she signed
itshe would be paid out that day. Raftopolousdid not understand why
the agreement said
voluntary termination rather than voluntary
retrenchment and needed to think about it which is why she went back
to Henwood a second
time. Henwood did not specifically deny that this
meeting had taken place and mentioned that she only gave Raftopolous
a copy of
the draft voluntary retrenchment agreement when she asked
for one.
[9] It was the applicant’s
interaction with Henwood on 10 and 13 October 2008 which led her to
believe that her retrenchment
was a pre-determined issue and that
anything which followed that would merely amount to going through the
motions. Formal consultation
meetings took place on 16 October and
12, 15 and 19 December 2008.
Meetings on 16 October 2008
[10] At an initial consultation meeting
on 16 October, the meeting simply traversed the contents of the
notice and invited employees
to reflect on it.According to Henwood,
employees were invited to provide written proposals of alternatives
to retrenchment. It
was envisaged that management would respond in
writing on the viability of such proposals and a further meeting
would be scheduled.
The other employee present in the meeting was one
‘Oscar’ who fell out of the consultation process
subsequently after
he agreed to voluntary severance. Raftopolous’s
transcript of the meeting makes no reference to a written proposals
being
exchanged. The facilitator, Mr Kabelo Heisi (‘Heisi’)
of Labournet, seems to have accepted that Raftopolous was willing
to
be redeployed within the company and she wanted to consider that
option once she got a clearer picture of positions and how
it would
affect her conditions of employment. He also anticipated that the
employees would meet with Henwood and Michelle and discuss
with them
the terms and conditions which might apply to other available
positions.
[11] Henwood said she also had a
separate discussion with Raftopolous and the firm’s recruitment
manager, Michelle on the
same day. Michelle referred to Raftopolous
to her previous employer at a recruitment agency, because she
believed he might be able
to help her find a position in view of her
vast IT experience. He was looking for someone with project
management and IT experience.
Henwood denied that this suggestion had
been made to encourage Raftopolous to take up work outside the
company or to discourage
her from looking for work inside the
business. Henwood also claimed that the suggestion had come from
Michelle and not the company.
The purpose of the meeting had been to
discuss the prospect raised by Michelle and not to consult
Raftopolous about other alternatives.
It was also suggested to
Henwood that when she said to Raftopolous in the same discussion
that, even if she was receiving a salary
of R 23,500-00 she was not
made to be a debt collector that was an attempt to discourage her
from considering that as an alternative.
Later under
cross-examination, Raftopolous sought to imply that she would have
considered the position if it was offered and had
not paid attention
to the prospect of a debt collecting position in the call centre
because she was still “trying to fathom”
the external
position being proposed by Michelle and would not have heard Henwood
talking about this. She would not have lightly
brushed aside an offer
of R 23,500-00 for that kind of work. Henwood argued that if
Raftopolous was interested, nothing prevented
her from raising a call
centre agent’s post as a possibility. She further denied that
there was a legal position available
at that stage carrying a salary
of R 23,500-00.
[12] Raftopolous did not have any
difficulties with the suggestion made by Heisi at the meeting about
discussing alternative posts
at the firm, but she did not believe her
discussion with Henwood and Michelle accorded with what he had
intended. The subsequent
discussion was not supposed to be confined
to trying to place outside the company but was supposed to look at
available positions
within the company. Moreover Henwood had
expressly said that the subsequent meeting had nothing to do with
what Heisi had directed.
[13] An unusual aspect of the case is
that Raftopolous approached Henwood shortly before the consultation
meeting took place on
16 October 2008 and clandestinely recorded
their conversation. She approached Henwood on the basis that she was
thinking of signing
the voluntary severance letter but wanted clarity
about the process. Henwood outlined the process and Raftopolous’s
transcript
of the recording of what followed reads thus:
“Laureen:Now what would be the
point of this if, I am already, I mean I know I am already retrenched
you told me that correct,
just explain the first one again the
voluntary.
Tabetha: Ok the first one means that we
are not going to meet with you every week ok. You are just do not
assign the voluntary retrenchment
and we and pay you out the
immediately and you do not need to work in the notice period in ok.
But what we officially doing here
is you basically a working like and
notice period in and we pay you out after the fourth consultation.
The reason we have to do
that is that is because according to labour
brought? There are only two ways to do it, either the individual
takes a voluntary
retrenchment normally followed the four-week
consultation process. So it is basically we are just rained the
procedure. Understand
what I am saying. We have to do it that way.
There are only two ways. Either the individual takes the voluntary
recall we follow
the four weeks and terminate after the consultation.
Laureen: Right but I mean either way I
am retrenched.
Tabetha: Yes.
Tabetha: the only other alternative is
to go into the Call Centre which is the only available positions we
have currently in an
obviously the same sort of position becomes
available again you know, business picks up, then obviously we will
invite you first
for an interview before we invite anyone else for an
interview.
Laureen: I still do not see why I
should go through the process when
Tabetha: because we have to go through
the process according to law, we don’t have a choice, that is
what we as a company
have to do, we don’t have a choice, we
cannot not do that.
Laureen: But I mean you already
decided, have you not. You have decided.
Tabetha: Well at the moment.
Laureen: you decided last week you
already decided that’s it I’m retrenched.
Tabetha: Well the thing is according to
this thing, obviously we are speaking about possible retrenchment. In
the next four weeks
if something miraculously happens, what I am
saying to you is in the next four weeks I, I cannot predict what will
happen in the
next four weeks, but as far as it stands at the moment
there is no other option at the moment.”
[14] Henwood could not really dispute
the contents of this conversation but disagreed that it meant that
Raftopolous’s retrenchment
was predetermined because the
conversation had to be understood in the context. On four or five
occasions in the conversation,
Raftopolous had pushed her to say
something because she knew the conversation was being taped. Henwood
contended that the conversation
was just a ‘general’ one
and it did not mean that no alternatives might arise, but just that
there were none at that
stage. Had Raftopolous raised alternatives
with them the firm would have looked at those. Furthermore, she would
not have offered
voluntary retrenchment if Raftopolous had not asked
about it. From that point onward, Raftopolous was the only person who
had not
accepted a voluntary severance agreement.
Disciplinary and Appeal Proceedings
[15] About a week later, a report was
received that Raftopolous had phoned another recently employed
employee of the company, Basson,
and told her that the company was no
good and she had made a mistake joining it. Management took this very
seriously and immediately
suspended Raftopolous. Raftopolous claimed
that all she did was to tell Basson that the company was retrenching
staff after Basson
had repeatedly asked her if she had made a mistake
joining it. In her evidence in chief, Raftopolous said that she had
personally
asked Basson why she had left her previous company and she
told Basson she should not have.
[16] Henwood did not deny that she did
not ask Raftopolous about her version before suspending her. In
Henwood’s view that
was what the enquiry was supposed to
determine. Raftopolous was understandably aggrieved that the word of
an employee who had just
joined the company a fortnight earlier was
accepted at face value without making any preliminary enquiries with
her about the allegation.
[17] Between the first consultation
meeting in October and the subsequent ones in December, the applicant
was subjected to a disciplinary
enquiry for an alleged breach of
contract and bringing the company’s name into disrepute by
allegedly discussing her opinion
of management with Basson.
Raftopolous believed that the timing of the complaint was odd because
she had spoken to Basson on 10
October 2008 but Basson had only laid
the complaint after the consultation meeting with Heisi on 16 October
2008 in which the applicant
had expressed an interest in the position
that Basson had been employed in. Raftopolous also felt that the
company had not brought
the disciplinary charges in good faith as
Henwood had admitted that Basson had lied, though it must be said
that Henwood was never
tested about why she did not raise this if
that is what she believed, and the transcript of that conversation
suggested that she
was not wholeheartedly agreeing with Raftopolous.
[18] The disciplinary hearing was
conducted byHeisi, who had initiallymanaged the retrenchment
consultations with Raftopolous. He
found that Raftopolous had pleaded
guilty to the first charge and found her guilty of the second. He
recommended her dismissal.
Raftopolous lodged an appeal. A
controversial issue was whether his recommended sanction had been
altered from a final written
warning to dismissal. Henwood claimed
that the outcome she had received recommended dismissal and she was
very upset when the confusion
over the correct recommendationbecame
apparent at the appeal hearing. This caused her to lodge a complaint
with Labournet.
[19] The enquiry was concluded on the 3
November 2008. Before the outcome was made available to the firm,
Henwood approached Raftopolous
and again offered her the option of
voluntary retrenchment. The first approach was on 5 November 2008
when Henwood spoke to Raftopolous
on the phone. Raftopolous said that
she had sent an SMS to Henwood after the call declining the offer.
The following day she went
to see Henwood and during the course of
that discussion, which was also recorded by Raftopolous, Henwood
encouraged her to accept
the voluntary severance agreement on the
basis that if the outcome of the disciplinary enquiry was dismissal
then she would only
be paid up to the date of the outcome, whereas if
she accepted voluntary retrenchment, she would be paid a month’s
salary
and her termination of service would not be recorded as a
dismissal. Henwood also warned that if the sanction came back as a
first
and final written warning then she would continue with the
retrenchment process.
[20] Henwood was cross-examined
extensively on this conversation and it was suggested to her that she
was attempting to pressurise
the applicant to accept voluntary
severance by raising the prospect of her dismissal as a worse
alternative. Henwood said that
she simply wanted to give the
applicant the option of receiving more money which she would have
forfeited if she was dismissed.
At that stage she simply did not know
what the outcome of the enquiry would be. She admitted asking
Raftopolous if she intended
to go to the CCMA in the event she was
dismissed, but denied that the purpose of testing her willingness to
accept voluntary severance
was to see if CCMA proceedings could be
avoided. In keeping with what she was recorded by Raftopolous as
saying at that meeting,
Henwood said that she had only raised this
issue because she had found the whole process very stressful herself
and wanted to prepare
herself for possible CCMA proceedings. It was
the first retrenchment process she had been involved in.
[21] A first appeal hearing was heard
by Mr. D Malatsi (‘Malatsi’), also of Labournet, on 20
November 2008. A second
appeal hearing was chaired by Pretorius. The
appeal process was finalised when the appeal was upheld on 26
November 2008. According
to Pretorius, the reason for holding a
second appeal hearing was because of errors which had taken place in
the enquiry process,
namely that the chairperson had relied on
hearsay evidence and erroneously recorded that Raftopolous had
pleaded guilty to the
first charge. A controversy arose at the start
of the first appeal proceedings before Malatsi, when it became
apparent that, according
to the outcome of the hearing obtained by
Malatsi, Heisi had recommended a sanction of a final written warning,
whereas the recommendation
made to Henwood was dismissal. Malatsi
said he was advised by Heisi that he could find the outcome on his
desk and that was how
he obtained his version of the document.
Because Malatsi was unable to obtain clarity from Heisi about which
document was correct,
the hearing was abandoned until matters could
be clarified. Subsequently, a fresh appeal hearing was then convened
with Pretorius
as the chairperson. Pretorius denied that the
recommended sanction had been changed from a final written warning to
dismissal in
order to pressurise the applicant. Henwood likewise
denied that the outcome had been changed at the behest of the
respondent to
one of dismissal.
[22] Pretorius denied that the object
of the disciplinary process had been to pressurise Raftopolous
because she had been the only
employee who refused to sign a
voluntary severance agreement. Pretorius contended that Raftopolous
had never suggested there was
an ulterior motive for the disciplinary
proceedings. Further, not all staff had signed voluntary severance
agreements as some had
accepted alternative placements. At the time
Raftopolous had also never contended that her suspension was also a
device to pressurise
her. Further, if it had been the case that the
disciplinary process was initiated for ulterior reasons she would not
have upheld
Raftopolous’s appeal. Pretorius also claimed that
at the time she chaired the appeal hearing she was unaware of the
retrenchment
process.
[23] Henwood was the complainant in the
disciplinary proceedings and represented VVM in the appeal
proceedings as well. As far as
she was concerned, the disciplinary
process merely interrupted the consultation process. When it was over
the operational and financial
situation of the company had not
improved. Consequently, the retrenchment process resumed.
[24] From the time she was notified of
the disciplinary charges until the conclusion of the appeal
proceedings, Raftopolous was
suspended. According to Raftopolous, she
was only recalled from suspension when the retrenchment consultation
process recommenced
in December even though her appeal had been
upheld in November. Henwood said that it was not the case that
Raftopolous was not
allowed back, but there was simply no other work
for her to do. She also denied that she had been escorted to the car
and had not
been given an opportunity to collect her belongings when
she was suspended, but did not have personal knowledge of what
transpired.
Although the disciplinary process ultimately ended with
the applicant being’ vindicated’, she said she found it
difficult
to take the resumption of the consultation process
seriously.
Before VVM made use of the services of
Labournet, the initial interaction retrenchment with Pretorius was
conducted in-house by
Henwood. Pretorius had no knowledge of what
transpired in the meetings before she became involved in the
retrenchment consultations
in December 2008. Meeting of 12 December
2008
[25] According to Pretorius’s
notes of the consultation meeting on 12 December 2008, which
reconstituted the retrenchment
process following the disciplinary
proceedings, the applicant had said that she did not have any
alternatives to propose. Pretorius
was challenged on her recording of
this, but the suggestion made to her that there was no reflection of
Raftopolous having said
this in Raftopolous’s more
comprehensive transcript of those discussions was misleading as it
does appear in that transcript
that Raftopolous did agree that if no
new clients had been signed on that she would have no work to do as
one of her jobs was processing
new clients on the debtor database
system.
[26] In defending the respondent’s
stance that it had no alternative positions for Raftopolous,
Pretorius testified that Raftopolous
had been the only Project
Manager in her department and she was not qualified for other
positions given her experience in data
and IT, whereas the other
available senior positions required call centre and auditing
experience. The two positions in question
were those occupied by
Basson and van der Walt who had been employed after Raftopolous in
the call centre operation.
[27] Henwood testified that Basson had
been employed as a book manager with the responsibilities of: (a)
analysing books; (b) daily
reporting to be sent by 10 H00, and (c)
checking campaigns SMS letters etcetera. Henwood testified that
Basson had debt collection
experience and van der Walt had auditing
skills.
[28] Towards the end of the meeting
there was a discussion about the redundancy of Raftopolous’s
position. Henwood explained
that her position had become redundant
because the firm was not getting new clients and having closed down
the sales centre there
was only one call centre left. In the absence
of new projects, there was little work for her to do. Raftopolous
then said she believed
that the company wanted to get rid of her
because she was one of the highest paid staff in the data department.
Thereafter there
was a lengthy discussion about the impact of the
closure of the sales department which had led to losses that
necessitated the
cutting of overheads. Raftopolous acknowledged this
though she would not agree that, what she herself described as “the
huge
loss in sales” and the associated loss in the call centre
of R 500,000 per month meant that there was a downturn in the
business
as well. It seemed anomalous to her that that they employed
other staff such as Basson while retrenching. It became apparent that
Raftopolous was not aware Basson that she had been employed as an
analyst because the previous incumbent had resigned. Eventually,
Raftopolous said that she “understood” the company’s
reasons for retrenchment and the discussion moved on to
alternatives
she could propose.
[29] It was at this juncture that
Raftopolous said “If there are no new clients coming in, then
what work would I do?”
She was then asked by Pretorius if she
had other experience or whether there was any other position or
function she could not perform
in the company, to which she responded
that all her experience in the last 30 years was in IT and she had
joined the company to
help them develop call centre data bases into a
system, but that did not materialise so she ended up doing business
analysis and
business process modelling which is not what she had
been employed to do. Pretorius then asked: “So you basically
did business
analysis and business processing. Is there not any other
position within the company that you think you could do and obviously
your position would become redundant?” Raftopolous’s
response was: “If so they would have to create a position,
which they do not currently have. I could help Lior with
municipalities.” A discussion then ensued about ‘Lior’,
a director, who also managed municipal debt collections. Henwood
rejected this proposal on the basis that Lior’s workload
had
been reduced by the closure of some of the departments and that the
management of municipal debt was on a trial basis. Consequently,
there was no need for someone to assist him.
[30] Raftopolous’s own
transcription of the discussions in the meeting ends at that point,
but evidently there was some further
discussion about other
alternative positions during which the applicant said she could not
move to a call centre position because
of the huge drop in salary
that would entail. According to the notes taken by Pretorius,
Raftopolous also indicated that she did
not have the skill
qualifications to ‘bump’ someone out of their existing
position in the company. In her evidence
in chief, Raftopolous denied
that she had ever said this and implied that such a statement would
have been implausible that time
because alternative positions had not
been discussed. However, it was never put to either of the employer’s
witnesses that
she had never made the statement.
Meeting of 15 December 2008
[31] During the meeting on 15 December
2008, Raftopolous was asked whether she would consider positions if
they entailed a drop
in salary. Raftopolous said she would have to
think about that and discuss it at the next meeting. Under
cross-examination, Raftopolous
claimed to have said that if there was
a definite offer she would consider it, but this was not tested with
either of the respondents’
witnesses. She also enquired about
whether VVM intended to continue to develop the so-called “front
end” of the business,
which is what she had been employed to
do. On this issue VVM was not in a position to respond on that
question.
[32] On the question of selection
criteria, the consultation notice had indicated that at that stage in
the data department, the
firm was contemplating that Raftopolous’s
position and those of two data analysts would be affected and that it
proposed
to use LIFO as the selection criteria if the positions were
made redundant. It was suggested that the applicant did not
understand
the implication of LIFO being used as a retrenchment
criterion, but Pretorius contended that Raftopolous would not have
made alternative
proposals if she did not understand the principle.
[33] Pretorius denied that Raftopolous
had again complained during this consultation that Henwood had told
she would be retrenched.
Meeting on 19 December 2008
[34] In this meeting, Raftopolous
initiated the discussion repeating her claim that the process had
been predetermined, that the
significant losses incurred in the call
centre department were no longer an issue because staff had been
moved to work in the debtors
department and that the firm had
actually grown both in terms of staff numbers and projects since she
was employed. The employer’s
response was that she had not been
the only person retrenched and therefore she could not say the
company simply wants to get rid
of her. Further, the financial
position was such that the company had not paid bonuses and there was
no guarantee that current
projects would be renewed. It had not yet
recovered from the losses it had incurred.
[35] Under cross-examination, Pretorius
was tackled on the question of why she had not delved into the
applicant’s contention
that the process was predetermined. She
believed that it was for Raftopolous to provide the basis of her
contention and not for
her to extract it from her. Henwood’s
response to the same question was that Pretorius had dealt with it in
the course of
guiding the company through the retrenchment, though
she could not point to any specific response given to Raftopolous’s
challenge.
[36] Further discussion then ensued
about the possible alternative positions and the skills required for
those positions. As regards
the development of the C3 mapping program
which Raftopolous developed, there was no new developmental work
required except by way
of enhancements. According to Pretorius’s
notes, Raftopolous agreed she did not have the skills required for
the other two
positions occupied by van der Walt and Basson and that
the explanation about the C3 program made it clear that there would
be no
further development work for her in that area. The C3 program
was a suite of programs developed for the call centre operation.
[37] Under cross-examination, it was
suggested to Pretorius that Raftopolous believed that the additional
skills and experience
which the company had relied upon to justify
the retention of van der Walt and Basson were not in fact part of the
job requirements
of the two positions in question. Pretorius, who
admitted to have limited knowledge of the specifics of the two posts
in question,
disputed this. She emphasised that the book manager of
the debtors call centre was required to analyse statistics and make
recommendations
on how costs could be saved based on his auditing
experience. The other post of call centre manager called for someone
who had
direct experience of call centre management and debt
collection.
[38] Pretorius’s notes reflect
that after the discussion of these positions, Raftopolous was asked
if she had other proposals
to make. Pretorius denied that the
discussion of the two posts had been superficial and pointed out that
it was only when Raftopolous
agreed she did not have the necessary
skills of those positions that she was asked what other proposals she
might have to make.
If Raftopolous had claimed she did have the
necessary skills, then it would have warranted delving deeper into
the issue. In her
evidence in chief, Raftopolous agreed she did not
have an auditing background on past experience in call centers, but
she was never
asked if she thought she could do either of those jobs.
She believed that they had evaluated her based on the particular
selection
criteria they had used when employing van der Walt and
Basson and had not considered what she could do.
[39] When Raftopolous commented in the
consultation process to the effect that even if she had alternatives
they would be turned
down in any event, the employer’s response
was that it would not turn down any alternatives without a valid
reason and reiterated
that the process was not predetermined; that
other staff had been retrenched including people in senior positions,
and that everyone
had been given the opportunity of agreeing to
voluntary severance or following through with the consultation
process.
[40] It was also suggested that the
discussion of severance pay had been superficial. Pretorius’s
response was that Raftopolous
had asked if the amount proposed was
the norm. Raftopolous had expressed a view that what the law
prescribed was not necessarily
fair but had made no alternative
proposal on severance pay other than to say that she thought that one
week’s pay was too
little. If the company had wished to convey
that the amount was set in stone it would not have asked her to make
an alternative
proposal. Raftopolous was emphatic that she had never
been said to her that she had for more. She also denied saying that
the law
was unfair, but this was never put to Pretorius.
[41] Raftopolous claimed that she only
signed the letters of the meetings because Pretorius said that it was
not to confirm that
they were in fact correct, but just so the
written minutes could not be altered. Though not much turns on this,
this was never
put to the employer’s witnesses.
[42] On the question of engaging on the
timing of the retrenchment, Pretorius testified that Raftopolous had
agreed at that meeting
that she agreed it should be finalised on that
date as it dragged on long enough and was predetermined anyway.
Raftopolous’s recording of
conversations in meetings
[43] It was suggested to Raftopolous
under cross-examination that her secret recording of conversations
and some of the meetings
was in bad faith and that she could hardly
claim that the employer was acting in bad faith when that is how she
conducted herself
in the process. She claimed her motive was merely
because she would not remember everything and could not take notes,
but this
did not explain why she did not disclose what she was doing.
She denied that her intention was to use it at a later stage and that
by implication she had no intention of seriously engaging in the
consultations herself. She repeated that it was Henwood who had
told
her she would be retrenched whichever route was followed. Raftopolous
also denied that she had been advised to record the
proceedings in
the hope that someone would agree that the retrenchment was
predetermined, or that she had made at least six attempts
to get
Henwood to say this during the first recorded meeting at Henwood’s
office on 16 October. She defended her attem
pts to elicit answers from Henwood on
the basis that she had never been through such a process for and
could not see the point of
it if she was going to be retrenched.
Raftopolous claimed she wanted to know how the process was going to
affect her personally.
When Henwood said there might be an
alternative she interpreted this as giving her mixed signals.
[44] Raftopolous also had no
explanation why transcriptions had only been made available a week
before the trial. It also appears
that the transcript of the
consultation on 12 December 2008 ended just before the company’s
minutes recorded Raftopolous
as saying that she did not have other
alternatives to propose and could not manage on a call centre salary,
nor did she have the
skills and qualifications to ‘bump’
an existing employee. She eventually reluctantly agreed that the
company minutes
of the meeting were not inaccurate.
The need for retrenchment
[45] It was only under
cross-examination that Raftopolous mentioned for the first time that
she had never worked in the CCP operation,
but rather on two other
projects, Educon and Mafuba. The document announcing the
retrenchments only spoke about the sales call
centre that had close
down. Once the sales Department had been closed that loss had been
curtailed so it was not an ongoing drain
on the company according to
her. Likewise, she was not working in the conveyancing or EAO
department. Under cross-examination,
she described her work as
currently consisting of documenting the business processes in the
call centre and conveyancing departments.
She had never been attached
to a particular department including IT. Consequently, she did not
believe her own job to have been
affected.
[46] Under cross-examination,
Raftopolous was tested on her claim not to have fallen within the IT
department and it was suggested
to her that the only reason she made
the claim was to have a greater justification for being placed in
Basson’s job
The possibility of alternatives and
the selection criteria
[47] Henwood testified that Raftopolous
was looking at the flow of information in departments and what
employees were doing as well
as the flow of correspondence within the
department with the aim of streamlining it. Raftopolous had also
analysed garnishee orders
and debt collection specifically in
relation to the CCP book. Raftopolous had been involved in mapping
out the work of call centre
staff. The analysis done by van der Walt
was of a different kind and was with a view to working out strategies
based on analysis
of the results of campaigns such as SMS calls and
the costing of campaigns. Henwood was insistent that van der Walt’s
work
required financial qualifications, but could not easily explain
why Raftopolous could not have performed the kind of analysis he
did
with limited additional training. Henwood defended the firm’s
stance on the basis that Raftopolous had herself said she
was not
skilled or qualified to ‘bump’ other staff out of their
existing jobs. Henwood also conceded that if Raftopolous
had designed
the 3C program for the call centre, she would have known how to
extract information from it, but insisted that mapping
the process
was not the same as using the system and denied that Raftopolous
would have the skill to analyse the data. Similarly,
she denied that
merely because Raftopolous programmed financial aspects of the C3
system, she would be able to do the kind of analysis
which van der
Walt with his auditing experience would be able to perform. The
nature of this analysis was described in broad terms
and Henwood
clearly had no personal expertise to enable her to comment on the
actual content of the work.
[48] Basson would implement strategies
in the call centre using her prior call centre management experience.
In a similar vein to
her evidence on van der Walt’s position,
Henwood testified that call centre experience was needed for Basson’s
position
as it was necessary to understand the different classes of
debtors and the life cycle of debt collection. She said that Basson
would sit with van der Walt and when all the data came into the C3
system (the SMSes and telephone calls) which could be put into
a
report and her function was to oversee the “collection part”.
Basson would also go to the manager at the call centre,
identify
forms and escalate issues based on the additional information she
collected from the call centre floor. However, the call
centre staff
would not be aware of the campaign designed by the back office staff
like Basson and van der Walt. Basson also accessed
the C3 system.
Hendwood disputed Raftopolous’s contention that Basson had not
previously run campaigns, which was all done
by Lior. Henwood also
denied that Basson was doing what Raftopolous had done. In particular
Raftopolous had never consulted with
call centre staff.
[49] Henwood repeatedly sought to
emphasise that Basson’s prior management experience in debt
collection of one year was an
important factor which determined her
suitability for the job. She was unable to dispute that the call
centre function was only
dealing with the very first stage of the
debt collection process which was relatively simple, but she
contended it was not a simple
matter of picking up the phone.
However, Raftopolous claimed that she had worked on call centre SMSes
when working on client’s
documentation as it was necessary to
see if it fitted in with the call centre architecture. The wording of
SMSes had been decided
by Lior because of the sensitivity of such
communications. According to her that responsibility would never have
been given to
Basson or van der Walt. If she had not had sufficient
experience with debt collection she would not have been assigned to
work
for two years developing a database for the call centre
operation. Moreover, van der Walt had no debt collection experience
and
Basson had no auditing experience, which meant that neither kinds
of experience were pre-requisites for doing their work.
[50] According to Raftopolous, the
whole emphasis of the respondent was on the qualifications required
without ever discussing the
job requirements as such, which she
interpreted as a way of rationalising her unsuitability for either
post. Once again, it was
pointed out that this was something
Raftopolous had not raised during the consultation meetings. She also
agreed that even though
her key performance outcomes compared to
those of van der Walt and Basson did not overlap, her contract also
did not mention the
fact that she was involved in debt collection and
processing departmental processing work.
[51] Raftopolous insisted that her
fifteen years of experience doing business analysis work at Wesbank,
which entailed financial
and commercial elements, was sufficient to
compensate for a lack of Bcom degree when it came to managing
debtors’ books.
When she was asked why she had not stressed her
experience in commercial work related directly to IT, Raftopolous
argued that Henwood
should have been aware of her business
experience, though this point had not been specifically raised with
Henwood during her cross-examination.
[52] Henwood also distinguished the
position of a contractor who had analysed the sales department’s
profit and loss, Mr.
L Hicks, from the position occupied by Basson,
which was a new position. She could not dispute that Basson’s
post had been
created shortly before Raftopolous was retrenched. When
it was suggested to her that before appointing Basson to the post,
Raftopolous
should have been given a chance to prove herself, Henwood
relied on Raftopolous’s own statement that she did not have a
skills
to bump other staff out of their positions. She denied that
the tenor of the consultations had been so demotivating that
Raftopolous
had been put off applying for positions. They did not
give Raftopolous a trial run in the post because she had not made
that suggestion
and they would have considered it. She could not
dispute that no specific offer of an alternative position had been
made to Raftopolous.
[53] When Raftopolous testified it was
apparent that she felt that if LIFO had been applied either van der
Walt or Basson would
have been retrenched before she was. She also
could not understand why the respondent had ‘randomly’
identified herself
and two others for retrenchment if all jobs in the
conveyancing, data, sales call centre and EAO were redundant.
However, Raftopolous
did not give any explanation why she had not
challenged the identification of her post as redundant when she was
told during the
consultation on 15 December 2008 that there were not
enough new instructions to keep the persons in the data positions
busy. Nevertheless
Raftopolous maintained she did not accept this
rationale because new instructions were coming in from existing
clients.
[54] Raftopolous’s testimony was
that she would have taken a job in the legal Department at R 23,500
per month as she could
not find another job at the time, she was a
sole breadwinner and had lots of experience but no degree
qualification. In fact she
had also specifically made reference to
Basson’s job in the first consultation when she told Heisi that
someone had just
been brought in to do data statistical analysis and
that could have been an option. Raftopolous said that she referred to
the option
in the past tense because she believed they had already
made the decision to retrench her. Henwood showed no interest in
pursuing
this. Raftopolous believed she could have done Basson’s
job or possibly van der Walt’s job with a little training. She
had worked in programming overseas for 17 years until she became a
programmer analyst. Thereafter she had also done business analysis.
Raftopolous testified that she had done varied work at Wesbank where
she had done document process modelling and had resolved problems
together with users. She was employed by VVM because she had spent
two years building the call centre program. This had required
her to
document all processes performed by all personnel in the call centre
from the time an instruction came in. She also made
suggestions on
improvements in the process. She disputed that auditing experience
was necessary to determine what kind of SMS messages
to send out. The
analytical and comparative skills required for van der Walt’s
work did not include accounting or auditing
the. She conceded that
she had never designed an SMS campaign as such, but had done similar
work.
[55] As far as Raftopolous was
concerned, she could just as easily have obtained the results Basson
obtained from call centre staff
interviews, which was relatively low
level work compared to what she had been doing. Raftopolous also
maintained that she had not
closed her mind to a job in the call
centre but simply wanted to know what the position and terms and
conditions would entail.
She did concede that she had never expressed
an interest in a call centre agent’s position as such.
[56] Raftopolous was without work for
two and a half years after her retrenchment until being employed at a
school. As a result
she was compelled to live with her sister.
[57] Raftopolous was of the view that
once she had been told at the start that her retrenchment was
inevitable, it was difficult
for her to believe that anything she
said would be taken seriously. Her suggestion that she might have
been able to do Basson’s
job and her suggestion that she could
work with Lior were not taken up.
Evaluation
Was the applicant’s dismissal
pre-determined and was there consultation in good faith?
[58] When the applicant was alerted to
the prospect of retrenchment before the formal process was
instituted, at best for the respondent,
Henwood discounted the value
of the consultation process as an alternative to simply accepting
voluntary termination even if she
did not say it was completely
pointless. Although, the applicant was not able to induce Henwood to
actually say that her dismissal
was inevitable, Henwood held out
little prospect that the result would be any different if the
consultation process was concluded.
[59] Moreover when the applicant did
raise his suspicion that the result was predetermined, no attempt was
made to engage with her
concerns in that regard. It was merely
denied. It is true that the company engaged labour consultants to
manage the consultation
process and that at a formal level the
process did provide the applicant an opportunity to make inputs on
the need for retrenchment,
selection criteria, alternative positions
and the timing of retrenchment. Nonetheless, it is difficult to
escape the fact that
all of this took place against the backdrop of
the negative perspective of the consultation process which Henwood
had depicted.
[60] When it came to the discussion of
alternatives to retrenchment, there was no evidence that the employer
considered any possible
means which might have averted the
applicant’s retrenchment before initiating the retrenchment
process.
[61] When it came to the discussion of
alternative positions, no active encouragement was given to the
applicant to apply for them
even if an ordinary call centre
operator’s position might have been difficult for her to accept
given the base salary paid
to call centre operators. In relation to
the positions of van der Walt and Basson, which the applicant clearly
had expressed an
interest in depending on the remuneration package
applicable to those positions, the company did focus on the job
descriptions
for those two positions as a basis for excluding the
applicant. It also seems that the applicant accepted at the time that
she
might not have the requisite skills for either post given the
formal requirements.
[62] In retrospect, it appears that the
applicant may have too readily agreed that she was not equipped for
either post. This was
illustrated by the more exhaustive examination
of the actual requirements for those positions during the course of
the trial in
which the respondent’s witnesses, neither of whom
were really qualified to understand the work involved, had some
difficulty
in explaining why the applicant could not have been
considered for one of those posts. They could only rely on the
experience and
qualification attributes set out in the advertisements
rather than explaining why the applicant’s own extensive
business
analysis experience with Wesbank and her intimate knowledge
of the call centre program from which information to be analysed
would
be extracted did not make her a serious contender for either of
those positions.
[63] Be that as it may, the trial
proceedings are not a substitute for the consultation process and the
fact that the exploration
of the real requirements of those jobs were
not comprehensively explored is as much due to the applicant’s
perhaps unnecessary
concession that she was not equipped for those
jobs as it is to the respondent’s failure to consider what she
really was
capable of.
[64] Nonetheless, what does emerge from
the consultation process is that the employer itself showed little
interest in exploring
or offering alternatives of its own accord and
attributed the primary responsibility for coming up with alternative
suggestions
to the applicant. This too was indicative of an absence
of a serious intention to embark on meaningful consultation process.
It
is true that during these proceedings the applicant sought to
engage with the issues the parties should have consulted on more
vigorously than she did when the consultations were taking place. It
is equally true that in the circumstances anyone in the applicant’s
position might have taken a despondent view of what could be
achieved, given the negative view of the process conveyed to her
before it started.
[65] Added to this, was the employers
of vigorous pursuit of disciplinary proceedings against her on the
strength of reported remarks
made to a new employee whose position
she had expressed an interest in, without so much as enquiring about
her version of events
before removing her from the premises. Whatever
the outcome of the disciplinary proceedings, it is entirely
understandable that,
having being excluded from the workplace from
that time onwards on charges which hardly warranted finalisation
before concluding
retrenchment consultations, any person in the
applicant’s position would have had reason to doubt that the
consultation process
which ensued thereafter would entail a sincere
effort by the employer to retain her employment if feasible. The
defeated attitude
which she displayed during her subsequent
engagement in that process is hardly surprising. Thus, whether or not
the applicant’s
retrenchment was definitely pre-ordained before
the consultation process began, I am not satisfied that the process
engaged in
by the employer could be interpreted as a meaningful one
given the prevailing environment it had created and its discouraging
approach
to the discussion of alternatives.
The need for retrenchment
[66] Clearly, the firm’s business
had suffered a blow with the nonrenewal of the CCP project and a
decline in other business.
It was argued by the applicant that the
losses emanating from those events were not continuing ones, but
nonetheless she could
not seriously dispute that the firm was
entitled to improve its financial position, which could be achieved,
amongst other means,
by retrenching some staff. There was no real
engagement during the consultation process or in these proceedings
about the extent
of the savings achieved by the retrenchment of the
staff in question, what alternative methods could have been
implemented to achieve
the same result.
[67] Added to the decline in business,
was the fact that the applicant’s own position had become
redundant to the firm’s
needs. She did not really dispute this.
On a balance of probabilities, I am satisfied that on the available
evidence the employer
had established an operational need to reduce
staff.
Selection criteria
[68] The real dispute over selection
criteria concerned whether or not the persons should have been
selected before the applicant
on the basis of LIFO. The principal
appears to have been applied to persons working within the CCP
project. The essential contention
is that it should have been more
broadly applied across the firm, in which case Basson or van der Walt
would have been retrenched
instead of the applicant. As the evidence
above shows, the employer’s rationale for retaining both those
staff was that they
had been specifically employed in jobs for which
the applicant was not suitably skilled. Whether that was actually
true was not
adequately explored during the consultation process and
although much more attention was given to this issue in the course of
these
proceedings, in the absence of more detailed evidence of the
specific tasks performed by both employees and why the applicant
could
not have performed them given her own experience, I am not
satisfied the preponderance of evidence shows that the respondent
justifiably
declined to consider retrenching one of them in favour of
the applicant applying the LIFO principle.
[69] Consequently, I am not persuaded
that LIFO was fairly applied in the case of the applicant.
Conclusion
[70] In light of the above, the
applicant’s retrenchment was substantively and procedurally
unfair.
Relief
[71] The applicant was only employed
for a year before her retrenchment. In the general sense retrenchment
was justified, but the
respondent failed to prove she was fairly and
objectively selected for retrenchment.
[72] A factor weighing against the
applicant in determining fair and equitable compensation is that even
though she had good reason
to doubt the employer’s sincerity in
the consultation process, her secret recording of interactions with
the firm in the
course of the process, was also not bona fide. There
was no need for secrecy if her sole purpose was to ensure she had an
adequate
record of what was said during the consultation process.
There might have been some justification for it when she wanted to
confirm
utterances indicating bad faith on part of the firm before
the process began, but not to secretly record the consultation
process
itself, despite her understandable misgivings about the
employer’s sincerity. It is true also that at least she did
raise
her complain that the process was a sham during the
consultation process itself.
[73] In the event, I have reduced the
compensation of four month’s remuneration I would have awarded
by half on account of
the underhand conduct of the applicant during
the formal consultation process.
Order
[74] I find that:
74.1 The applicant’s selection
for retrenchment was not objectively fair.
74.2 The consultation process was not
conducted in a bona fide manner and the applicant’s
retrenchment was procedurally unfair.
[75] The respondent must pay the
applicant two months’ remuneration as compensation, calculated
at R 41, 700-00 per month
amounting to R 83, 400-00, within 14 days
of the date of this judgment.
[76] The respondent must pay the
applicant’s costs.
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
For the Applicant: M Thompson of
Thompsons Attorneys
First Respondent: H Lee of Snyman
Attorneys