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[2015] ZALCJHB 134
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Association of Mineworkers and Construction Union and Others v Buffalo Coal Dundee (Pty) Ltd and Another (J593/15) [2015] ZALCJHB 134 (24 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
no: J593 /15
In the matter
between:
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION
UNION
(AMCU)
.............................................................................
First
Applicant
INDIVIDUALS
LISTED IN ANNEXURE “A”
.....................................
Second
to further Applicants
and
BUFFALO
COAL DUNDEE (PTY)
LTD
...................................................................
First
Respondent
ZINOJU
COAL (PTY)
LTD
....................................................................................
Second
Respondent
Heard
:
14 April 2015
Delivered
:
24 April 2015
Summary
:
Application in terms of the provisions of section 189A(13) of the
Labour Relations Act. Application of section 200B. No retrospective
application.
JUDGMENT
PRINSLOO, AJ
Introduction:
[1]
The Applicants approached this Court on an
urgent basis seeking an order in the following terms:
a.
An
order declaring that the Respondents have failed to comply with a
fair procedure in terms of section 189A(13) of the Labour Relations
Act
[1]
(LRA) and with section 52
of the Mineral Petroleum Resources Development Act
[2]
(MPRDA);
b.
Interdicting the Respondents from giving
effect to the notices of termination issued on 11 March 2015 which
notices of termination
take effect on 11 April 2015, until such time
the Respondents complied with a fair procedure and complied with the
obligation set
out under the MPRDA and particular the social and
labour plan;
c.
Alternatively if the Court finds that the
notices of termination issued to the individual applicants resulted
in their dismissal,
direct the Respondents to reinstate the
individual applicants until there is compliance with a fair procedure
and section 52 of
the MRPDA, alternatively order the payment of 12
months compensation, further alternatively refer this matter to
trial.
[2]
The Applicants’ cause of action is
based on two pieces of legislation namely the LRA and the MPRDA.
[3]
The application is opposed.
Brief history
[4]
On 22 December 2014 the First Respondent
(Buffalo Coal) issued a notice in terms of section 189(3) of the LRA
to the National Union
of Mineworkers (NUM) and the First Applicant
(AMCU). In the section 189(3) notice Buffalo Coal explained that it
operated under
increasingly difficult financial circumstances for the
past two years and undertook a number of restructuring measures in
order
to support and turn around its financial position. The
initiatives Buffalo Coal implemented are set out in the section
189(3) notice.
[5]
The section 189(3) notice is an 18 page
document setting out in detail the reasons for the proposed
dismissals, the alternatives
considered by Buffalo Coal before
proposing the dismissals, the number of employees likely to be
affected and the job categories,
the proposed method of selection,
timing of the dismissals, proposed severance pay, assistance offered
and the possibility of future
employment.
[6]
Also on 22 December 2014 the Second
Respondent (Zinoju) advised the Department of Mineral Resources
(herein referred to as the DMR)
that Buffalo Coal issued a section
189(3) notice to commence a retrenchment process.
[7]
On 23 December 2014 Buffalo Coal requested
facilitation through the Commission for Conciliation, Mediation and
Arbitration (CCMA).
Mr Ndaba was appointed as facilitator and on 14
January 2015 the CCMA set down the section 189A facilitation for 20
January 2015.
[8]
On 20 January 2015 the first consultation
meeting was attended by the facilitator and representatives of
Buffalo Coal, AMCU and
NUM. There was no interpreter available and in
the absence of an interpreter NUM and AMCU were unwilling to proceed
with the meeting,
whereupon it was postponed and rescheduled for 30
January 2015.
[9]
At the second meeting on 30 January
2015Buffalo Coal provided the unions with its financial statements. A
copy of the Social and
Labour Plan (SLP) was also provided. Buffalo
Coal indicated that it had no obligation to comply with the
obligations set out in
the SLP. AMCU rejected this on the basis that
Buffalo Coal was the majority shareholder of Zinoju. The two trade
unions requested
further information, which Buffalo Coal undertook to
provide by 4 February 2015. Most of the meeting was spent taking the
unions
through the section 189 notice.
[10]
On 3 February 2015 the facilitation process
continued and AMCU raised the issue that the DMR had issued a
directive to Zinoju to
comply with the SLP. Buffalo Coal once again
adopted the attitude that it did not have to comply with the SLP.
[11]
On 4 February 2015 Buffalo Coal responded
to the question posed by AMCU on 30 January 2015 and indicated that
Zinoju would not be
participating in the section 189 process as it is
not retrenching any employees.
[12]
On 5 February 2015 AMCU addressed a letter
to Buffalo Coal recording that it failed to comply with the
provisions of the MRPDA and
the SLP.
[13]
On 7 February 2015 the NUM indicated that
they would proceed to participate in the section 189 consultation
process.
[14]
A third consultation meeting was scheduled
for 9 February 2015. AMCU once again raised the issue that Buffalo
Coal had to comply
with the obligations set out in the SLP, however
Buffalo Coal persisted with its stance that there was no need for it
to comply
with the SLP and further that it had no obligations under
the SLP. Most of this meeting was spent to deal with the relationship
between Buffalo Coal and Zinoju and the respective obligations under
the SLP and section 189 of the LRA.
[15]
AMCU proposed the formation of a task team
to look into the restructuring and retrenchments required at Buffalo
Coal’s Magdalena
underground operations (MUG). Mr Ndaba
directed that the task team be set up and that a meeting be set up
with the DMR.
[16]
On 10 February 2015 the task team was set
up and on 11 February 2015 the terms of reference were agreed to.
AMCU proposed that a
technical mining expert should accompany and
assist the task team. The proposal was accepted and on 16 February
2015 the task team
met. On 17 and 18 February 2015 the technical
mining expert appointed by AMCU went on a detailed site visit with
other members
of the task team. The expert was granted access to
technical and financial information to enable him to provide a
comprehensive
expert assessment to the task team. The task team
subsequently produced a report on 19 February 2015.
[17]
On 23 February 2015 the fifth consultation
meeting, facilitated by Mr Ndaba, took place. Officials from the DMR
attended this meeting.
The parties had to study and consider the task
team’s report and the meeting was adjourned to 24 February
2015. AMCU requested
Zinoju’s financial statements, which were
provided and AMCU proposed an extension of the consultation process
to take advice
on the financial statements provided.
[18]
The parties met on 24 February 2015 for the
sixth consultation meeting and it was agreed that the task team would
continue to meet
over the period 25 – 27 February 2015,
although the consultation process under the LRA had come to an end.
AMCU made verbal
proposals to alleviate the dismissals and the task
team met over the agreed period. On 11 March 2015 the proposals from
AMCU were
made in writing. AMCU proposed that LIFO be applied as
selection criteria.
[19]
On 25 February 2015 the task team produced
a further report. The report concluded that MUG was in a dire
financial position.
[20]
The LRA consultation process as well as the
extended period for the task team came to an end when the parties on
2 March 2015 agreed
to a special meeting to consider the task team’s
latest report and recommendations. At this meeting measures to avoid
dismissal
were discussed.
[21]
The period between 2 and 10 March 2015 was
utilised as a deliberation period to consider and address the verbal
recommendations
made by AMCU on 24 February 2015. On 10 March 2015
the final decision on retrenchment was taken and subsequently on 11
March 2015
the retrenchment notices were issued. Also on 10 March
2015 AMCU objected to the termination of the employees services and
proposed
that the consultations continue and the facilitation process
be extended.
[22]
On 11 March 2015 AMCU raised a number of
issues in relation to the section 189 consultation process.
[23]
AMCU filed this application on 19 March
2015 and the matter was enrolled on an urgent basis on 14 April 2015.
The purpose of
section 189A(13)
[24]
Section
189A(13)
reads as follows:
“
If an
employer does not comply with a fair procedure, a consulting party
may approach the Labour Court by way of an application
for an order —
(a)
compelling the employer to comply with the fair procedure;
(b)
interdicting or restraining the employer from dismissing an employee
prior to complying with the fair procedure;
(c)
directing
the employer to reinstate an employee until it has complied with the
fair procedure;
(d)
make an
award of compensation, if an order in terms of paragraphs
(a)
–
(c)
is not appropriate.”
[25]
In
Banks
and another v Coca-Cola SA - A Division of Coca-Cola Africa (Pty)
Ltd
[3]
the Court summarized the role of the Court in a section 189A(13)
application as follows:
“
In short, the
conclusion to be drawn from the wording of s 189A is that this court
appears to have been accorded a proactive and
supervisory role in
relation to the procedural obligations that attach to operational
requirements dismissals. Where the remedy
sought requires
intervention in the consultation process prior to dismissal, the
court ought necessarily to afford a remedy
that accounts for the
stage that the consultation has reached, the prospect of any joint
consensus-seeking engagement being resumed,
the attitude of both
parties, the nature and extent of the procedural shortcomings that
are alleged and the like. If it appears
to the court that little or
no purpose would be served by intervention in the consultation
process in one of the forms contemplated
by s 189A(13)
(a)
,
(b)
and
(c)
, then compensation as provided by para
(d)
is
the more apposite remedy”.
The urgent
application
[26]
The Applicant approached the Court on an
urgent basis in terms of the provisions of section 158(1)(a)(i) to
(iv) and section 189A(13)
of the LRA, seeking the relief as set out
in its notice of motion.
[27]
AMCU identified four broad complaints
namely:
1.
Notices of retrenchment were issued to the
individual applicants (the employees) on 10 March 2015 where the
Respondents failed to
follow a fair procedure;
2.
The Respondents failed to comply with the
provisions of the MPRDA in particular the obligations set out in the
social and labour
plan submitted thereunder;
3.
The Respondents excluded Zinoju from the
consultation process on the basis that it is not the employer of the
employees;
4.
The parties have not consulted over the
issues as set out in section 189(2)(a)(iii), (iv), (b) and (c) of the
LRA.
[28]
These issues are pertinent in deciding this
matter.
The liability of
the First and Second Respondents
[29]
It is prudent to deal with the liability of
the Respondents before the merits of this application are considered.
[30]
Buffalo Coal is the holding company and
Zinoju is a 70% owned and controlled subsidiary of Buffalo Coal.
Zinoju is the holder of
the mining rights and Buffalo Coal performs
the mining operations.
[31]
As the mining rights holder Zinoju had to
submit a SLP to the DMR in accordance with Regulation 46 of the
MPRDA.
[32]
Regulation 46 of the MPRDA requires that
the SLP must contain processes pertaining to the management of
downscaling and retrenchment
which must include the establishment of
a future forum, mechanisms to save jobs and avoid job losses,
mechanisms to provide alternative
solutions and procedures for
creating job security where job losses cannot be avoided and
mechanisms to ameliorate the social and
economic impact where
retrenchment or the closure of the mine is certain.
[33]
The SLP provides for the establishment of a
future forum that is constituted as agreed and consists of management
representatives
and workers or their representatives. If discussions
with the future forum had been exhausted and job losses cannot be
avoided,
the provisions of section 189 and 189A of the LRA will be
implemented and a consultation process will be initiated with the
relevant
employee and representative organisations.
[34]
The contracts of employment of the
employees are with Buffalo Coal.
[35]
AMCU seeks that Buffalo Coal and Zinoju be
regarded as co-employers and that they be held jointly and severally
liable to the Applicants,
as the obligations set out in the SLP would
be rendered nugatory if Zinoju is not regarded a co-employer.
[36]
The Respondents’ case is that Buffalo
Coal is the employer and Zinoju is nothing more than the holder of
the mining rights.
Buffalo Coal as the employer has the statutory
obligation to comply with section 189 and 189A of the LRA and there
is no such obligation
on Zinoju.
[37]
AMCU seeks to invoke the provisions of
section 200B of the LRA, as amended, to hold Zinoju liable as a
co-employer.
[38]
Section
200B has been inserted by section 40 of the Labour Relations
Amendment Act
[4]
and reads as
follows:
Liability for
employer's obligations
(1) For the purposes
of
this Act
and any other employment law, 'employer' includes
one or more persons who carry on associated or related activity or
business by
or through an employer if the intent or effect of their
doing so is or has been to directly or indirectly defeat the purposes
of
this Act
or any other employment law.
(2) If more than
one person is held to be the employer of an employee in terms of
subsection (1), those persons are jointly and
severally liable for
any failure to comply with the obligations of an employer in terms of
this Act
or any other employment law.
[39]
It is important to mention the fact that
Section 200B came into operation on January 2015.
[40]
Mr Watt-Pringle for the Respondents
submitted that section 200B does not apply in this case for two
reasons. Firstly the operation
of section 200B is not retrospective
and secondly there was no intention or effect to defeat the purposes
of the LRA.
[41]
Mr Watt-Pringle submitted that the section
189 process was triggered when Buffalo Coal anticipated retrenchment
and the process
commenced on 22 December 2014 when the section 189(3)
notice was issued and also when Buffalo Coal requested the
appointment of
a CCMA facilitator on 23 December 2014. The
consultations and eventual retrenchment that followed in 2015 were a
continuation of
the process that commenced before section 200B became
operational.
[42]
The Respondents submitted that had it not
been for the provisions of section 200B, Zinoju would not be party to
this application
and since it cannot apply retrospectively, it cannot
apply
in casu
.
[43]
Mr Watt-Pringle further submitted that even
if section 200B applies to Zinoju and if it is deemed to be a
co-employer with Buffalo
Coal, the implication would be that it could
be held liable jointly and severally with Buffalo Coal for
non-compliance with sections
189 and 189A of the LRA. Section 200B
does not bear the implication that Zinoju must consult pursuant to
sections 189 and 189A.
[44]
Mr
Boda for the Applicants and in addressing the issue of the
retrospectivity of section 200B of the LRA referred to the matter
of
Bandat
v De Kock
[5]
wherein Snyman AJ considered whether the amendment of section 11 of
the Employment Equity Act
[6]
(EEA) will apply retrospectively as the amended section did not apply
when the claim arose and the statement of case was filed
but applied
when the matter was adjudicated. In
Bandat
the
Court concluded that there is nothing in the EEA or the amendment
thereof that indicates that it must be applied retrospectively
and
the procedure prior to the amendment must find application.
[45]
Mr Boda argued that the conduct in the form
of consultation and retrenchment was subsequent to the amendment and
therefore section
200B should apply and Zinoju should be held to be
the co-employer.
[46]
Although the argument put forward by Mr
Boda was persuasive, it did not go far enough to convince me that
section 200B should apply
in casu
and
that Zinoju should be held liable as co-employer.
[47]
I
accept the position as set out in
Bellairs
v Hodnett and another
[7]
:
'”There is a
general presumption against a statute being construed as having
retroactive effect and even where a statutory
provision is expressly
stated to be retrospective in its operation it is an accepted rule
that, in the absence of a contrary
intention appearing from the
statute, it is not treated as affecting completed transactions and
matters which are the subject of
pending litigation”.
[48]
Even if I am wrong on that, the wording of
section 200B does not assist the Applicants in seeking to hold Zinoju
liable as co-employer.
Section 200B provides that
'employer'
includes one or more persons who carry on associated or related
activity or business by or through an employer if the intent or
effect of their doing so is or has been to directly or indirectly
defeat the purposes of this Act or any other employment law’.
[49]
The allegations made by the Applicants are that Buffalo Coal
and Zinoju should be held liable jointly and severally because
Buffalo Coal is the holding company and Zinoju is
a 70% owned and controlled subsidiary of Buffalo Coal and the two
entities have
the same directors.
[50]
It is evident that section 200B requires
more – it requires an intention or an effect to defeat the
purposes of the LRA or
any other employment law. As already
pointed out Zinoju is the holder of the mining rights and Buffalo
Coal does the mining
operations. Section 200B would apply if a case
is made out that the fact that Zinoju owns the mining rights and
Buffalo Coal conducts
the mining operations was intended to or had
the effect of directly or indirectly defeating the purpose of the LRA
or any other
employment law. No such case had been made out and also
for this reason section 200B does not apply. I am therefore of the
view
that Zinoju is not liable as co-employer.
Exclusion of
Zinoju from section 189 consulation process
[51]
The Applicants complain that the
Respondents excluded Zinoju from the consultation process on the
erroneous basis that it is not
the employer of the employees.
[52]
Section 189 and 189A of the LRA place a
legal obligation to consult on an employer when it contemplates
dismissing employees for
reasons based on operational requirements.
There is no provision in the LRA that extend the obligation to
consult to any party
that is not the employer of the employees to be
affected by the contemplated retrenchment.
[53]
Having found that Zinoju is not the
employer of the employees, there was no duty on Zinoju to consult
with the Applicants and to
participate in the section 189 and 189A
consultation process.
[54]
I do not find any merit in the complaint
that the Respondents excluded Zinoju from the consultation process on
the erroneous basis
that it is not the employer of the employees and
that such exclusion rendered the consultation process unfair.
Compliance with
the provisions of the MRPDA:
[55]
A further complaint of the Applicants is
that the Respondents failed to comply with the provisions of the
MPRDA in particular the
obligations set out in the social and labour
plan submitted thereunder.
[56]
The Respondents’ case is that the
section 52 of the MRPDA places obligations on the holder of mineral
rights when the circumstances
arising in section 52(1)(a) and (b) of
the MRPDA occur. Zinoju is the holder of the mining rights and
submitted that it has complied
with those obligations.
[57]
It is not for this Court to determine
whether Zinoju has or has not complied with its obligations under the
MPRDA.
[58]
In
National
Union of Mineworkers v Anglo American Platinum and others
[8]
this
Court has held that:
“
On the face
of it, s 52 does not seek to substitute the procedure prescribed for
that established by s 189 or s 189A of the LRA.
First, the
obligations that s 52 creates are imposed on the holder of a
mining right, not the employer of any employees whose
security of
employment may be affected by the conditions that trigger the
requirement to give notice and who may be the subject
of any
contemplated retrenchment. It is therefore entirely feasible that the
holder of a mining right may have obligations in terms
of s 52, but
no obligations to employees or registered unions in terms of s 189.
Section 52 therefore
would appear to address a purpose different to that which underlies s
189 of the LRA, which is the promotion
of consensus on the employment
related consequences of adverse operational requirements through a
joint consensus-seeking exercise.
Secondly, s 52 makes no reference
to any obligation to consult employees or their representatives
about the consequences of
any reduction in the profit to revenue
ratio or scaling down of the mining operation. The obligation to
consult employees and their
representatives established by s 52 is
relevant only to the timing of notice to the minister. That having
been said, s 52(4) acknowledges
that the holder of a mining right (to
the extent presumably that the holder is the employer of any
employees potentially affected
by a retrenchment) is required to
comply with s 189 or 189A, as the case may be”.
[59]
Buffalo Coal submitted that there is no
obligation on it to comply with the provisions of section 52 of the
MPRDA as section 52
places obligations on the holder of a mineral
right and Buffalo Coal is not the holder of mineral rights.
[60]
In my view the obligations the MRPDA places
on the holder of a mineral right remain the obligations of the
mineral right holder
and do not extend to entities or parties who are
not mineral right holders, as contemplated in the MRPDA. In the event
that the
mineral right holder is also the employer of employees to be
affected by a contemplated retrenchment, the position is different,
as section 189 of the LRA will also come into play.
[61]
Section 52 of the MPRDA does not place any
obligation on Buffalo Coal and I am not convinced that there is an
obligation on Buffalo
Coal to comply with section 52 of the MPRDA.
Procedural
complaints
[62]
The Applicants complain that the
Respondents did not follow a fair procedure and failed to consult
over specific issues set out
in section 189 of the LRA.
Although the complaints raised are directed against both Respondents,
I will, in view of my earlier
findings, only consider the complaints
with regard to Buffalo Coal.
[63]
The complaint about the failure to follow a
fair procedure is two fold. Firstly that Buffalo Coal failed to
consult about the list
of those employees selected for retrenchment.
The name list was disclosed only when the letters of termination were
issued and
that in circumstances where proper consultation over
selection criteria, including those affected by the selection, has
not taken
place.
[64]
Secondly that Buffalo Coal failed to accede
to a reasonable request to extend the consultation process in
circumstances where alternatives
to retrenchment have not been
properly considered.
[65]
Buffalo Coal denied that there is merit in
these complaints. Mr Ndaba, the facilitator took the parties through
every issue referred
to in section 189 and the trade unions were
invited to consult on those issues in accordance with section 189.
There were numerous
consultations held and the Applicants only have
themselves to blame for failing to make themselves heard at the
appropriate time.
[66]
Buffalo Coal pleaded that the section
189(3) notice has fully set out the reasons for retrenchment and
other aspects required by
the LRA. This notice was issued on 22
December 2014 and the consultation process that commenced in January
2015 was at all times
facilitated by the CCMA. On 30 January 2015 the
CCMA facilitator dealt with each aspect of the section 189 notice,
followed by
questions from the unions. On 4 February 2015 Buffalo
Coal responded in writing to the questions raised by the trade
unions. A
number of meetings were held during the period 20 January
and 24 February 2015, on which date AMCU for the first time verbally
expressed recommendations and proposals. AMCU referred to the task
team’s identification of potential positions to save jobs.
Selection criteria had been discussed and it was accepted that LIFO
would be the fairest criteria and following further discussion
it was
decided that LIFO would be applied to each affected business area.
Buffalo Coal submitted that the method of selection proposed
by the
trade unions was ultimately used.
[67]
It is further Buffalo Coal’s case
that the task team convened for a further period, after the
consultation process under the
LRA came to an end, to consider
measures for minimising the adverse effects of the retrenchment
process and through this process
the number of retrenchments was
effectively reduced. On 25 February 2015 Buffalo Coal extended the
opportunity to all employees
to take voluntary severance packages
before 4 March 2015.
[68]
Buffalo Coal submitted that the LRA
consultation process was closed on 24 February 2015 and it continued
to engage with the trade
unions and the task team until 2 March 2015.
Buffalo Coal stated that it acceded to requests from the trade unions
to extend the
period of consultation beyond the statutory 60 day
period, despite a significant deterioration in its financial
position. Between
2 and 10 March 2015 Buffalo Coal considered the
proposals made by AMCU on 24 February 2015, which resulted in a
reduction of the
number of employees to be retrenched.
[69]
Letters of termination were issued on 11
March 2015, on the same day which AMCU for the first time in writing
raised issues in relation
to the section 189 consultation process.
Buffalo Coal submitted that the proposals so raised were captured on
24 February 2015
and considered further on 2 March 2015 and the
issues raised were taken into account and were responded to.
[70]
Mr Watt-Pringle submitted that there is no
requirement in the LRA that Buffalo Coal has to consult about the
name list
[71]
The further complaint is that there was no
consultation over the issues set out in section 189(2)(a)(iii), (iv),
(b) and (c) of
the LRA.
[72]
The Applicants submitted that there were
passing proposals regarding selection criteria, severance pay,
assistance the employer
proposed to offer, possibility of future
re-employment and number of employees to be retrenched, but
consultation on those issues
did not begin as the parties were stuck
on the issues relating to the SLP.
[73]
In my view the parties were not stuck on
the issues relating to the SLP – AMCU was stuck on those issues
and to such an extent
that it lost focus of the consultation process
and the obligation it had to participate in the consultation process.
AMCU was stuck
on the fact that it wanted Zinoju to participate and
that it wanted the SLP to be complied with to such an extent that it
lost
focus when it was expected to participate in a facilitated
consultation process that was legitimate and that was seeking to
comply
with the provisions of sections 189 and 189A of the LRA.
[74]
It is evident from the papers before this
Court that AMCU proposed LIFO as selection criteria and that Buffalo
Coal implemented
LIFO as selection criteria. The complaint seems to
be that there was no consultation on the application of the selection
criteria.
That is however a substantive issue.
[75]
In its opposing papers Buffalo Coal stated
that AMCU had a dilatory approach to the consultation process and
engaged in efforts
to delay the process. The picture that the papers
disclose is one that depicts AMCU as frustrating the consultation
process because
AMCU spent an inordinate amount of time, even until
the final day of consultation, exploring the relationship between
Buffalo Coal
and Zinoju and insisting on discussing compliance with
the MRPDA. AMCU therefore failed to focus on the issues relevant to
prevent
job losses and to engage in a meaningful joint consensus
seeking process within the applicable timeframe.
[76]
In
National
Union of Mineworkers v Anglo American Platinum
[9]
the
Court found that:
“
Finally, it
should be noted that it is not generally open to employees or their
representatives to rely on the remedies afforded
by s 189A in
circumstances where they have frustrated the consultation process, or
where procedural issues are raised ex post
facto, or on the basis
only that the employer consulting party has rejected proposals made
at the eleventh hour.
It is clear from
these authorities that for the purposes of an application such as the
present, the proper approach is to judge
procedural fairness
holistically, and to avoid the approach of a mechanical checklist in
relation to each subsection of s 189 and
to ascertain whether the
overall purpose of the joint consensus-seeking process required by
the LRA has been achieved”.
[77]
On the papers before me and considering procedural fairness
holistically, I am satisfied that Buffalo Coal discharged its
obligation
to consult with AMCU on the issues as set out in section
189(3) of the LRA.
[78]
I am satisfied that Buffalo Coal was entitled to bring the
consultation process to an end when it did and to issue retrenchment
notices.
Relief
[79]
The last issue to be considered is the
relief sought by the Applicants.
[80]
I will consider the relief sought in light
of my findings that Buffalo Coal is the employer that has the duty to
consult its employees
in terms of section 189 and 189A of the LRA and
that it had no duty to comply with the provisions of the MPRDA.
[81]
In
Banks
[10]
the
Court has held that:
“
The four
remedies established by subsection (13) afford the court a wide
discretion. The first two remedies (a compliance order,
and an
interdict against dismissal) clearly contemplate intervention by the
court before a dismissal takes effect, the latter (reinstatement
until there is compliance with a fair procedure, monetary
compensation) contemplate intervention after an employee has been
dismissed.
This provision is to be read with the time-limits
established by subsection (17). These contemplate intervention
by the court
at a time that is appropriate given the circumstances of
the case, and having regard to the particular remedy that is sought”.
[82]
The Applicants seek an order declaring that
Buffalo Coal has failed to comply with a fair procedure in terms of
section 189A(13)
of the LRA and that it should be interdicted from
giving effect to the notices of termination issued on 11 March 2015,
taking effect
on 11 April 2015, until such time it complied with a
fair procedure. Alternatively the Applicants seek an order for the
payment
of 12 months compensation to each of the employees and
further alternatively AMCU seeks that this application be referred to
trial.
[83]
The dismissal of the employees however took
effect on 11 April 2015 and an interdict against dismissal will have
no practical effect.
[84]
Mr Boda however argued that the retrenched
employees should be re-instated, as is provided for in section
189A913)(c) of the LRA,
and that there should be consultation with a
view to reach consensus on the establishment of a future forum,
whether the obligations
under the SLP have been complied with, the
financial statements of Zinogu, the selection criteria, the list of
employees and the
timing of the retrenchment.
[85]
Mr Watt-Pringle argued that the employees
cannot be re-instated as they cannot retrospectively do what should
have been done and
this will be detrimental to Buffalo Coal’s
already weak financial position. Buffalo Coal followed a fair
procedure and there
is no merit in this application
[86]
In my view the only competent relief at
this stage is either to re-instate the employees until Buffalo Coal
has complied with a
fair procedure or to grant them compensation as
provided for in section 189A(13) of the LRA.
[87]
The topics the Applicants want to consult on to reach
consensus are set out by Mr Boda in his heads of argument as: the
establishment
of a future forum, whether the obligation under the SLP
had been complied with, the financial statements of Zinoju, the
selection
criteria, the list of employees and the timing of the
retrenchment. I fail to appreciate what purpose would be served
by reinstating
the employees and requiring Buffalo Coal to go back to
square one and begin the consultation process afresh, more so in view
of
the topics the Applicants want to consult on and my earlier
findings as set out in this judgment.
[88]
After a careful consideration of the papers, I am satisfied
that there is enough evidence on the papers before this Court to find
that the procedure followed by Buffalo Coal was not unfair.
[89]
Relief in terms of section 189A(13)(c) or
(d) can only be granted if the Court finds that there was indeed
procedural unfairness.
[90]
In the absence of procedural unfairness
this
application must fail.
Costs
[91]
Costs should be considered against the
provisions of section 162 of the LRA and according to the
requirements of the law and fairness.
[92]
The general accepted purpose of awarding
costs is to indemnify the successful litigant for the expense he or
she has been put through
by having been unjustly compelled to
initiate or defend litigation. In considering whether costs should be
awarded, the requirements
of law and fairness become applicable.
[93]
The requirement of law has been interpreted
to mean that the costs would follow the result.
[94]
In considering fairness, this Court has
held that the conduct of the parties should be taken into account and
that
mala fide
,
unreasonableness and frivolousness are factors justifying the
imposition of a costs order. Another factor to be considered is
whether there is an ongoing relationship that would survive after the
dispute had been resolved by the Court. If so, a costs order
may
damage the ongoing relationship.
[95]
In
NUM
v East Rand Gold and Uranium Co Ltd
[11]
the Court in considering
the requirements of law and fairness with regard to the issue of
costs, adopted the following approach:
“
(a)
The provision that the requirements of the law and fairness are to be
taken into account is consistent with the role of the Industrial
Court as one in which both law and fairness are to be applied.
(b)
The general rule of our law that in the absence of special
circumstances costs follow the event is a relevant consideration.
However,
it will yield where considerations of fairness require it.
(c)
Proceedings in the Industrial Court may not infrequently be a part of
the conciliation process. This is a role which is designedly
given to
it.
(d)
Frequently the parties before the Industrial Court will have an
ongoing relationship that will survive after the dispute has been
resolved by the court. A costs order especially where the dispute has
been a bona fide one, may damage that relationship and thereby
detrimentally affect industrial peace and the conciliation process.
(e)
The conduct of the respective parties is obviously relevant
especially when considerations of fairness are concerned.”
[96]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[12]
it was emphasized that:
“……
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.”
[97]
The Applicants prayed for relief and costs and the Respondents
prayed for the dismissal of the matter with costs.
[98]
Despite the fact that there might be an ongoing relationship,
there were other factors to be considered as well and I can see no
reason why costs should not follow the result.
Order
[99] In the
premises, I make the following order:
99.1
The application is dismissed with costs.
_______________________
Connie Prinsloo
Acting
Judge of the Labour Court
Appearances
For The Applicants:
Advocate F Boda
Instructed by: Larry
Dave Attorneys
For The Respondents:
Advocate Watt-Pringle SC with Advocate van Vuuren
Instructed by: Baker
MacKenzie Attorneys
[1]
Act 66 of 1995.
[2]
Act
49 of 2008
[3]
(2007) 28 ILJ 2748 (LC).
[4]
Act
6 of 2014
[5]
(2015) 36 ILJ 979 (LC).
[6]
Act
55 of 1998
[7]
1978 (1) SA 1109 (A).
[8]
(2014) 35 ILJ 1024 (LC).
[9]
Footnote 5
[10]
Supra.
[11]
[1991] ZASCA 168
;
1992
(1) SA 700
(A);
(1991)
12 ILJ 1221
(A).
[12]
2012
33 ILJ 2117 (LC).