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[2015] ZALCJHB 155
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NUMSA obo Members v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) (J864/15) [2015] ZALCJHB 155 (21 May 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, JOHANNESBURG
Judgment
Case
No: J864/15
DATE:
21 MAY 2015
Not
Reportable
Of
Interest to Other Judges
In
the matter between:
NUMSA
Obo
Members
.............................................................................................................
Applicant
And
Aveng
Trident Steel
(a
division of aveng africa (PTY)
Ltd
...............................................................................
Respondent
Heard:
14 May 2015
Delivered:
21 May 2015
Summary:
LRA s 189A(13) – application to compel employer to reinstate
workers and to compel it to comply with fair procedure.
Judgment
STEENKAMP
J
Introduction
[1]
This
is an application in terms of s 189A(13) of the Labour Relations
Act
[1]
. The applicant union,
NUMSA, represents a number of its members who have been dismissed for
operational requirements by the respondent,
Aveng Trident Steel.
NUMSA asks for:
1.1
a declaratory order that the respondent did
not comply with a fair procedure before dismissing the workers;
1.2
an order interdicting the respondent from
dismissing any more of the union’s members before complying
with a fair procedure;
1.3
an order compelling the respondent to
reinstate the applicant’s members until it has complied with a
fair procedure.
[2]
The union has brought the application
within 30 days of the dismissal, as prescribed by s 189A(13).
Background
facts
[3]
The relief sought by the union relates to
the dismissal of 733 of its members for operational requirements on
24 April 2015. The
union says that they were dismissed pursuant to a
notice in terms of s 189(3) that the employer issued on 1 April 2015.
It is common
cause that it is a large scale retrenchment as
contemplated by s189A. The union says that there has been no
facilitation and that
its members must be reinstated pending a
facilitated consultation process. The employer says that the
dismissal is a culmination
of a process that started with a s 189(3)
notice that it issued on 15 May 2014, a year ago.
[4]
The notice of 15 May 2014, addressed to the
union, is headed: “
PROPOSED
ORGANISATIONAL CHANGES IN AVENG TRIDENT STEEL
”.
It informs the union that the company intends to restructure with a
potential for job losses. The main reason for the proposed
restructuring is not financial, but structural. The company proposed
reviewing its organisational structures and redefining some
job
descriptions. Its initial analysis indicated that around 400 jobs may
be affected. The consultation process would be facilitated
by the
CCMA.
[5]
A facilitated consultation process
followed. The union proposed a five grade structure as an alternative
to retrenchment. The employer
was prepared to consider this proposal,
provided that it would fulfil its operational requirements, but
required a more detailed
proposal from the union. The five grade
structure would necessitate the re-designing of job descriptions and
the employer was concerned
that it should not increase costs beyond
those provided for in the Main Agreement of the Metal and Engineering
Industries Bargaining
Council (MEIBC).
[6]
In October 2014 the employment of 253
employees was terminated, of whom 249 opted for voluntary severance
packages and four were
dismissed. (The union says that this was the
end of the consultation process; the employer differs).
[7]
In February 2015 the employer and the union
reached an agreement to phase out transport. The collective agreement
makes it clear
that the background to the agreement is that “the
parties embarked on a restructuring process within the framework of
LRA
section 189A at Aveng Trident Steel”.
[8]
On 17 April 2015 the employer sent a letter
to the union with the heading: “CONCLUSION OF RESTRUCTURING
CONSULTATION”.
The following paragraphs bear repeating:
“
On
15 May 2014 in terms of section 189(3) of the Labour Relations Act
(“LRA”) we gave you notice of our intention to
engage you
regarding possible operational dismissals arising from a need to
restructure. …
We
engaged you in facilitated consultation under the auspices of the
CCMA in terms of section 189A of the LRA during the period
2 June
2014 to 18 October 2014 regarding the contemplated restructuring.
Regrettably no consensus was reached by the time the facilitator’s
engagement ended. Notwithstanding the facilitator withdrawing from
the process we continued our engagement with you in an attempt
to
reach consensus through consultation.
On
11 September 2014, during our ongoing consultations with yourselves
[
sic
], you proposed as an alternative to the redesigned job
descriptions a five grade structure. During October 2014 we reached
an in
principle agreement on the implementation of a five grade
structure. As a retrenchment avoidance measure some 224 employees
were
granted voluntary severance packages.
As a
result of the release of our employees on voluntary severance
packages, in line with the contemplated redefining of jobs and
incorporating the redefined jobs in the five grade structure, your
members agreed to work in accordance with the redefined job
descriptions until the five grade structure was finalised, which it
was contemplated would be by 1 March 2015, at an additional
interim
rate of 60c per hour.
The
finalisation of the five grade job structure did not receive much
attention until February 2015 as we engaged you in extensive
consultations regarding the phasing out of a transport allowance
between October 2014 to February 2015.
…
On
27 February we recorded that despite us having a different view on
the approach you adopted in respect of the interim agreement,
we
remained committed to engaging you in consultation to bring the long
outstanding matter to resolution, hopefully by reaching
consensus.
To
this end we engaged you on 3 and 5 March 2015 in consultations in
respect of the implementation of a five grade structure.
…
We
have carefully considered your proposal and regret to advise that we
are not in a position to accommodate you further, given
the adverse
economic conditions coupled with the continued inefficiencies
experienced.
…
In
the circumstances, we now therefore give you notice that we shall
implement the new structure as per the redefined job descriptions
previously communicated with effect from 28 April 2015.
The
jobs as they existed prior to engaging you in consultation (in which
jobs your members were engaged) are now redundant. Accordingly
your
members face retrenchment, as these positions will no longer exist in
the new structure.
…
We
would like to advise that we reserve the right to issue notices of
retrenchment by 23 April 2015.”
[9]
The workers were dismissed on 24 April
2015.
[10]
In the interim, on 1 April 2015, the
employer issued a separate notice in terms of s 189(3) of the LRA.
That notice is also related
to the intended restructuring of “some
of the areas within its business” and it was contemplated that
approximately
100 jobs may be affected. This consultation process
would also be facilitated by the CCMA. Indeed, a facilitation meeting
in terms
of s 189A was scheduled for 28 April 2015.
[11]
The employer explained that this notice (1
April 2015) was issued because it is contemplating reconfiguring
certain operating machines
in the cutting and tube divisions. This
notice, it says, has no bearing on the dismissals of 24 April 2015.
The
union’s contentions
[12]
The union says that its members were
dismissed pursuant to the notice of 1 April 2015. There has been no
facilitated consultation
process in respect of that notice; hence the
dismissal does not comply with section 189A, its members must be
reinstated and the
process must start afresh.
[13]
The union further contends that the process
that started in May 2014 was finalised in October of that year. The
further consultations
that followed, it says, were simply to
implement the five grade job structure that the parties had already
agreed upon. It relies
on the minute of a meeting on 31 March 2015
dealing with ongoing consultations in respect of the five grade job
structure. The
meeting records, inter alia:
“
Management
indicated that they want to demonstrate their commitment to the
resolution of the five grade structure by inviting Numsa
to a
consultation session for them to make a proposal whether in writing
or orally by 7 April 2015.”
[14]
That meeting was followed by a letter on 1
April 2015 – the same date on which the new s 189(3) notice was
issued –
headed “
CONCLUSION
OF RESTRUCTURING CONSULTATION
”.
In that letter, the employee relations manager, Mongezi M
Makgalamele, says:
“
As
a demonstration of commitment to prevent retrenchment we propose
further consultation with yourselves [
sic
]
on 11 April 2015 at 0900. This is in anticipation of consolidation of
a mandate from your members by yourselves, otherwise on
the 16 April
2015 as per your proposal.”
[15]
In a further letter to the union dated 14
April 2015 the company records:
“
We
have reflected on your concerns in the spirit of section 189 to
engage in a meaningful joint consensus seeking process in an
attempt
to reach consensus, we have resolved to withdraw the offers of
alternative employment currently on the table to your members,
to
enable us to have a final consultation on measures to avoid
retrenchment by way of joint consensus seeking.”
[16]
That was followed by a meeting on 16 April
2015. The union relies on this minute to say that the parties were
only continuing consultations
on the implementation of the five grade
structure. Its view is recorded as follows in the minute:
“
Numsa
indicated that they were confused by the correspondences being sent
to them by management as they (the union) believe that
the notice of
s 189 sent to them last year relating to the process of consultation
has been finalised given that they were people
who were released from
the duties through the VSP.
Numsa
further mentioned that immediately after the finalisation of s 189
parties agreed to have a consultation on the five grade
structure on
a separate forum with regard to how the five grade structure would be
implemented. However Numsa mentioned that what
confuses them is that
management sent them a letter on the 30 March 2015 the heading of
which was “conclusion of the restructuring
consultation”
which was read Into the Record by the Union from Which Numsa believes
the issue has been resolved.”
The
employer’s response
[17]
The employer’s response is recorded
in the same minute of 16 April 2015. It says:
“
Management
mentioned that the process of s 189 filed on 15 May 2014 dictated a
consultation on the five grade structure which culminated
in
management making a proposal for Numsa’s consideration. In the
last meeting held on 31 March 2015, Numsa committed to
make a
proposal on a five grade structure to management in the next meeting
to be held on 16 April 2015.
However,
given the delay in the conclusion of the 2014 process and the
business being under pressure, management then decided to
issue
notice of S189 on 1 April 2015 which is distinct from the current
process of the five grade structure. Management indicated
that they
believe the above explanation clarifies the union’s confusion.”
[18]
The company says that it is clear from the
correspondence and minutes referred to that there was only an in
principle agreement
relating to a five grade structure in October
2014. The union did not comply with the provisos spelt out by
management with the
result that the parties deadlocked in April 2015,
leading to the dismissals on 24 April 2015. That the consultation
process was
ongoing is also clear from the fact that they only
reached agreement on the transport issue in February 2015. The new
notice of
1 April 2015 dealt with a discrete division and a separate
process. It is so that more employees were dismissed than the
employer
initially anticipated; that is because they could not reach
agreement on ways to avoid retrenchment.
Evaluation
[19]
If
a trade union alleges procedural unfairness in a large scale
retrenchment governed by section 189A, it is obliged to approach
the
Labour Court by way of application in terms of section 189A(13)
within 30 days after the employer has given notice to terminate.
That
is what the union has done. But it appears from the affidavits
[2]
that there are significant disputes of fact. This court has to
consider whether those disputes can be resolved on the papers; if
not, if the matter should be referred to oral evidence; and if can be
decided on the papers, the Court must decide whether the
union has
made out a case for the relief sought.
Referral
to oral evidence?
[20]
Mr
Myburgh
,
for the company, submitted that the disputes of fact were material
and that the matter should be referred to oral evidence on
an urgent
basis in order to test the differing versions in cross-examination.
He referred in this regard to a decision of The Labour
Appeal Court
handed down two weeks ago in
PUTCO
(Pty) Ltd v SATAWU
.
[3]
Differing from the court
a
quo
’s
decision to decide the matter on affidavit, the LAC stated:
“
The
resolution of the factual dispute in favour of the appellant would
have had disastrous consequences for the first respondent.
Likewise,
a resolution in favour of the first respondent had put paid to one
part of the appellant’s case. It is clear that
the consequences
of accepting one version above the other were indeed significant and
serious. The court a quo clearly needed more
and stronger evidence to
make the finding that it did.
…
In
my view, the court a quo should have referred this issue to oral
evidence. The fact that the matter was brought on an urgent
basis is
no bar against referring it to oral evidence.”
[21]
Mr
Myburgh
submitted that the same holds true in this case. Mr
Ngeko
disagreed, as do I. Most of the disputed issues can be resolved on
the affidavits read with the correspondence and minutes attached
thereto. When the court does so, it must obviously have regard to the
principle in
Plascon-Evans
[4]
,
restated by the SCA in
NDPP
v Zuma
[5]
:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon -
Evans
rule that where in motion
proceedings disputes of fact arise on the affidavit, a final order
can be granted only if the facts averred
in the applicant’s
affidavit, which have been admitted by the respondent, together with
the facts alleged by the latter,
justify such order. It may be
different if the respondent’s version consists of bald or
uncreditworthy denials, raises fictitious
disputes of fact, is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely
on the papers.”
[22]
It is with that principle in mind that I
consider the evidence before me.
The
purpose of the subsection
[23]
As
the Labour Appeal Court recently pointed out in
Edcon
v Steenkamp
[6]
:
“
The
object of section 189A(13) of the LRA, as appears from a purposive
interpretation of section 189A read as a whole and in context,
is to
separate out procedural issues and to provide a means whereby the
consultation and facilitation processes are not undermined
by
procedural flaws. It offers a useful expedient to the parties to seek
the assistance of the court, acting as the guardian of
the process,
to ensure that the issues are adequately identified, considered and
ventilated in the process of consultation or facilitation
before it
ends. It thus ensures that only disputes about the fairness of
substantive reasons and outcomes will generally be subjected
to
resolution by means of collective action or in a trial involving the
hearing of oral evidence.”
[24]
With that object in mind, the Court has to
consider whether the company has complied with the provisions of s
189A; and if not,
whether the employees should be reinstated in order
for the parties to engage in a further consultation process.
Has
the employer complied?
[25]
The union’s case rests on the
supposition that the 733 employees were dismissed on 24 April 2015
pursuant to the s 189(3)
notice that the employer issued on 1 April
2015. If that is so, it is quite obvious that the contemplated
facilitation has not
taken place and that there has been no proper
consultation.
[26]
But that version is not borne out by the
evidence before me, taking into account the principles set out above.
[27]
It is clear to me that the consultation
process that eventually failed and that led to the dismissals of 24
April 2015 commenced
with the s 189(3) notice issued in May 2014. A
proper and lengthy consultation process, facilitated by the CCMA,
followed. The
parties reached an in principle agreement on the five
grade structure proposed by the union but could not finalise that
agreement.
In February 2015, pursuant to the same consultation
process, they did reach agreement on the phasing out of transport.
However,
by April 2015 it became clear that they could not reach
final agreement on the five grade structure. That led to the
redundancy
and the ultimate dismissal of the employees. It followed
an extensive and facilitated consultation process just short of a
year.
[28]
The
facts of this case are distinguishable from those involving the same
trade union in
NUMSA
v General M
otors
of
SA (Pty
)
Ltd
[7]
- a case to which Mr
Ngako
,
surprisingly, did not refer, but Mr
Myburgh
,
to his credit, did. At first blush, the facts in that case would
appear to support the union’s case before me. But on the
facts,
the eventual retrenchments were not anticipated by the company’s
invitation to consult in 2008, and Van Niekerk J
held that the
consultation process initiated by that invitation came to an end in
2008. It followed that GM had to issue a fresh
notice in terms of
section 189 (3). In the case before me, the consultation process
initiated in May 2014 did not come to an end
in October 2014. It
continued into April 2015 when the parties reached a stalemate and
the company decided to dismiss. That dismissal
is not, in my view,
procedurally unfair.
Conclusion
[29]
In conclusion, I find that the dismissals
of 24 April 2015 took place after a full and extensive consultation
process initiated
in May 2014. This is not a case were the parties
have to be put back on track in a failed consultation process.
Although the consultation
process did not lead to the desired
outcome, i.e. to prevent dismissals, it was not unfair. The union is
not entitled to the relief
it seeks.
Costs
[30]
The parties are engaged in an ongoing
relationship and they face the next round of consultation. Although
the union was unsuccessful,
it raised a legitimate dispute in the
appropriate fashion. In my view, taking into account the principles
of both law and fairness,
a costs award is inappropriate.
Order
The
application is dismissed.
Anton
J Steenkamp
Judge
APPEARANCES
APPLICANT:
X Ngako of Ruth Edmonds attorneys.
RESPONDENT:
A Myburgh SC
Instructed
by Tabacks.
[1]
Act 66 of 1995 (the LRA).
[2]
A full set of funding, answering and replying affidavits has been
filed.
[3]
JA 106/13 (5 May 2015) paras [27] – [28].
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635D.
[5]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para [26], cited in
Putco
v SATAWU (supra)
para [26].
[6]
[2015] ZALAC 2
(3 March 2015) para [20].
[7]
[2009] 9 BLLR 914
(LC).