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[2015] ZALCJHB 255
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Ledwaba v BP Southern Africa (Pty) Ltd (JS955/2011, JS54/2011) [2015] ZALCJHB 255 (12 August 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: JS955/2011
Case
No: JS 54/2011
In
the matter between:
NOMALANGA
ROSINA LEDWABA
Applicant
and
BP
SOUTHERN AFRICA (PTY)
LTD
Respondent
Heard:
11, 12 & 13 August 2014, 4 September 2014, 3 November 2014
Delivered:
12 August 2015
Summary:
Restructuring – employer adopting a new organogram —employees
invited to apply for new positions
— employee not appointed and
subsequently retrenched — new position not materially different
from the previous one
— employee not offered available
alternative position — dismissal unfair.
JUDGMENT
MOOKI
AJ
[1]
The
respondent restructured its operations, including its human resources
department. The restructuring resulted in a new organisational
organogram. This matter pertains to the restructuring of the
respondent’s human resources department. Employees were
invited to apply for the new positions. The restructuring resulted in
four positions for human resources manager. The applicant
applied for
the position of “HR Manager, Refining, Supply and Logistics”.
Her previous position was “HR
Manager – Logistics &
Supply”. Both positions are at the same level. The
applicant was not appointed. She
was subsequently retrenched. The
applicant contends that her dismissal was unfair, both substantively
and procedurally. This is
denied by the respondent.
[2]
Ms.
Tebogo Maenetja (“Maenetja”), the respondent’s
Director for Human Resources, gave the following evidence in
chief.
The respondent decided to focus its business on South Africa and
Mozambique as its two core markets. This led to a restructuring
that
started in November 2010. The restructuring was staggered. The
process regarding employees in human resources was started
after the
rest of the affected business. Non-HR employees were sent
section 189 notices on 24 January 2011. HR employees
were sent such
notices on 28 February 2011.
[3]
The
section 189 notices set out various aspects to the restructuring,
including that retrenched employees would be considered for
re-employment within a six-month period of their retrenchment if they
met the criteria.
[4]
Consultations
with employees in human resources occurred on 2
March
and 9 March 2011. She attended the consultation sessions, during
which the consultation process and guiding principles to
be followed
in the restructuring were discussed. Employees were given the same
reasons for the restructuring as the reasons given
to non-HR
employees. Alternatives were to be considered before retrenchment.
She also considered alternatives outside of human
resources. She
considered junior roles in human resources. Employees were advised on
16 March 2011 that the assurance sign-off
was completed and that
employees who were not placed on the new structure could challenge
their non-placement.
[5]
The
restructuring in human resources resulted in a change in the
organisational structure. The respondent employed three officials
in
the operations being restructured that affected the applicant. The
old structure was divided into the inland and the coastal
regions.
Two employees were responsible for the inland region, with one
employee responsible for the coastal region. The new structure
combined the inland and coastal regions. Refining was included in the
new structure, as were logistics and supply. One official
was
responsible for the new structure. The work done by the incumbent in
the new structure had changed, including that the incumbent
was
expected, unlike in the old structure, to become more involved in the
respondent’s business.
[6]
Employees could apply for any position in
the new structure. Employees indicated their interest in the form of
an expression of
interest. This was then considered by a selection
panel. She was a member of the selection panel.
[7]
The panel assessed candidates for the new
positions with reference to a matrix that set-out core competencies.
The scoring on the
matrix was with reference to a “model
candidate”, which defined scoring expected of an ideal
candidate. Each position
in the new structure had its own core
competencies. The applicant expressed interest only in the position
of “HR Manager,
Refining, Supply and Logistics”. The
applicant was not considered for this position because she did not
meet the minimum
score required for the position.
[8]
Decisions by the panel were subject to
review by an assurance team made up of senior executives that
included the respondent’s
chief executive officer. A candidate
could also approach an ombudsman, who was not an employee of the
respondent.
[9]
The applicant’s expression of
interest contained information about her work history. That history
was in relation to the logistics
business. She also provided support
to depots, including hiring. The applicant scored 50.5 points. She
was not considered for the
position that she applied for. The
position was awarded to Ms. Chornelle Du Sart (“Du Sart”),
who had relevant qualifications
and relevant HR experience. The
applicant’s motivation in her expression of interest was
inadequate. She also came short
on most of the critical areas. She
fell short on the inherent job experience, even though she had
appropriate qualifications. She
also had limited HR experience in
relation to experience required for the revised role.
[10]
She (i.e. Maenetja) had, before the
restructuring, put a performance improvement plan in place for the
applicant. Performance was
not a consideration in relation to the
placement of employees in the new structure.
[11]
The applicant challenged her non-placement.
She was advised that her challenge did not succeed. She was then
given a retrenchment
notice on 30 March 2011, effective on 30 April
2011 unless a suitable alternative position was found for her. The
respondent would
consider alternatives outside of human resources
before 30 April 2011. The applicant would know of alternative
positions because
she worked in human resources. She could find out
about alternatives by considering the respondent’s vacancy
tracker called
the TAS System.
[12]
The applicant complained to the human
resources director on 11 April 2011, in which she raised various
issues including whether
she was considered for available alternative
positions. She (i.e. the witness) replied to the applicant’s
grievance on 19
April 2011. She advised the applicant, among others,
that the applicant’s line manager actively reviewed vacancies
regarding
available positions. The applicant would have known of any
available vacancies because they were publicised on the respondent’s
intranet.
[13]
Du Sart resigned within four months of her
appointment. She was unable to take up her position in Johannesburg
because her personal
circumstances had changed. The applicant was not
considered for Du Sart’s position because the respondent
maintained that
the applicant was not suitable.
[14]
The applicant could have applied for any
vacant role in the respondent after six months of her retrenchment.
She (i.e. the witness)
did not see any application by the applicant.
The new structure included the position of HR advisor. This was a
junior position
to that for which the applicant applied. The
applicant was not appointed to this position.
[15]
Maenetja gave the following evidence in
cross-examination. She maintained that the incumbent in the new role
had to perform differently,
including being diagnostic and operating
at a higher level. The new role was not explicit regarding managerial
experience. The
requirement was implied. She agreed that there are
instances, when comparing the old and the new role, where there are
no differences
in what the incumbent had to do.
[16]
Du Sart was scored better than the
applicant in various instances, including in relation to “taking
the lead” because
Du Sart gave more examples of her activities
compared with the number of examples given by the applicant in their
respective expressions
of interest.
[17]
Experience was not an explicit criterion in
the matrix. It was however taken into account in the assessment of
candidates. The applicant
was given a score of “1” in
relation to HR experience. The applicant has more than eight years’
experience in
human resources. She moved straight into an HR
management position when she joined the respondent. Du Sart started
as a training
administrator, a non-managerial position, when she
joined the respondent. Du Sart was appointed a manager in 2007. The
applicant’s
expression of interest revealed a specialty in one
area and a fair knowledge in other areas. Du Sart had exposure to
BP’s
operational work, including exposure to low-level
employees by virtue of her portfolio in finance. The applicant was
lacking in
some critical aspects of core HR including talent
management, calibrating performance, and rewards and benefits. She
had limited
exposure. The focus in the new role changed from
personnel administration.
[18]
Performance was not a primary lens for
decision-making by the selection panel. The members of the selection
panel were aware of
the performance of the candidates. She
agreed that the reasons given to the applicant when she challenged
her non-placement
do not accord with her evidence concerning
performance. She also agreed that performance considerations are
inseparable from the
matrix. She maintained that performance was kept
to a minimum.
[19]
Members of the selection panel brought
their own perceptions about candidates in the decision-making. This
was alleviated by the
assurance team. Candidates were not
interviewed. They were already known to members of the placement
panel and information about
the candidates was obtained from their
expression of interest.
[20]
She gave evidence that the applicant was
under-performing. It was then put to her that the applicant went on a
program offered by
the Gordon Institute of Business Science (“GIBS”)
and that the applicant was nominated for that program because she
was
identified as above average performer. It was also put to her that
the applicant was identified for the program because of
the
applicant’s leadership skills. She replied that attendance at
the program was an intervention to close performance gaps
and that
the person who nominated the applicant for the program is the one to
answer the question.
[21]
The applicant was assessed as meeting
expectations in her performance assessment. She agreed that the
applicant’s performance
assessment was generated bilaterally
and was more authentic than what is recorded in the expression of
interest. The matrix was
compiled within six months of the
applicant’s performance assessment. She could not confirm that
the applicant met her job
expectation before the restructuring. She
also could not confirm that the applicant’s line manager signed
the performance
assessment.
[22]
Du Sart was scored above the model
candidate in relation to a number of competencies. The applicant and
Du Sart received the same
score for education. She denied that the
applicant was prejudiced by not being scored above the model
candidate in relation to
education. She agreed that the panel did not
always grade candidates with reference to the model candidate. She
also agreed that
a number of considerations were not indicated as
criteria in the matrix. This included financial competency.
[23]
The applicant’s expression of
interest showed that the applicant lacked experience in HR. The panel
had objective means to
verify what candidates wrote in their
expression of interest. The means to verify what candidates said in
their expression of interest
were not included in the record.
[24]
The applicant received her letter of regret
on 16 March 2011. She challenged her non-placement on 17 March 2011.
She was advised
on 18 March 2011 that her challenge was unsuccessful.
She was given her termination notice on 28 March 2011, effective on
30 April
2011. The respondent continued to have an obligation as at
30 April 2011 to minimise retrenchments.
[25]
She denied that the applicant had limited
opportunities for alternative positions because the selection of
employees in human resources
occurred after the selection of other
employees. There was a list of vacant non-HR roles after the
placement of HR employees. The
applicant had access to the vacancy
list and could apply for any vacant role. The applicant’s line
manager reviewed available
roles and the applicant was made aware of
such roles. It was put to her that the applicant’s line manager
did not consult
the applicant on alternative positions. She replied
that the line manager can confirm the consultations. She agreed that
there
was no document in the record that deals with attempts to find
alternative positions for the applicant.
[26]
The other positions in human resources
following the restructuring had different matrices with
different criteria. The position
of HR advisor had a lower standard.
The odds are that the applicant would have done better in the
position of HR advisor. It is
probable that the applicant would have
qualified for the position of HR advisor. She did not know of any
assurance given to the
applicant by her line manager. There were no
restrictions on positions that could be applied for in the new
structure.
[27]
She denied that she or the applicant’s
line manager did nothing to assist the applicant. The applicant’s
line manager
engaged the applicant and she in turn was in constant
communication with the applicant’s line manager. She agreed
that her
letter of 19 April 2011 to the applicant did not refer to a
joint consultation.
[28]
She stated that the position of HR advisor
was filled, according to her recollection, at the time when the
applicant left the respondent.
It was put to her that the position
was vacant. She agreed that no name was associated with the position
of HR advisor in the respondent’s
organogram.
[29]
She denied that she introduced her personal
assessment into the matrix in relation to the applicant. She
maintained that her assessment
was based on the applicant’s CV
and feedback that she received from the applicant. The applicant’s
expression of interest
revealed a specialty in one area and a fair
knowledge in other areas. She denied that she was partial to Du Sart.
She maintained
that her evidence to the court was what the placement
panel took into account and how the scores were determined. The panel
compared
candidates against the matrix, not against each other.
[30]
She joined the respondent in the middle of
2010 and was the applicant’s manager at the time. The applicant
had already signed
a performance review at that time. She started
midyear reviews and met with each team member, including the
applicant. There were
problems with the applicant executing her
deliverables. The applicant told her that she lacked exposure because
the applicant’s
line manager was used to doing things. She
completed her feedback with the applicant and highlighted that the
applicant was performing
below expectations. She told the applicant
to put a plan together in order for the applicant to do things that
were previously
done by the applicant’s line manager. She put
the applicant on a performance improvement plan. The applicant made
significant
improvement by the end of the year.
[31]
It was put to her that the applicant
disputes that she performed below expectations or that she was put on
a performance improvement
plan. It was further put to her that the
document referred to had not been adopted. She maintained that the
document was adopted.
[32]
She gave evidence that there was no record
of a grievance by the applicant against Ms. Maela, the applicant’s
line manager
(“Maela”). She was aware of a troubled
relationship between the applicant and Maela. The applicant copied
her in an
e-mail dated 18 April 2011. She was unaware that there was
a pending grievance by the applicant against Maela. She was asked
whether
she was aware whether the grievance was resolved. She replied
that she wrote to the applicant and that she was aware of a verbal
response to the applicant. It was put to her that there was no
response. She agreed that it would be inappropriate for Maela to
be
on the panel if the grievance was pending.
[33]
Maenetja maintained, during her
re-examination, that she had a performance counselling session with
the applicant and that the performance
improvement plan was adopted.
[34]
Ms. Pamela Holness (“Holness”),
the respondent’s human resources operations manager, gave the
following evidence.
She was a member of the project team during the
restructuring. The project team was responsible for the coordination
and facilitation
of the restructuring process.
[35]
Employees in human resources were
considered at a later stage. The restructuring in human resources
followed the same process as
in the rest of the business. The
expression of interest was the main tool used in considering
placements. The respondent also used
the competency matrix. The
matrix is a global tool that was tailored to local conditions. It was
updated by line managers. The
matrix was aligned to job descriptions.
She was not involved in the design of the matrix.
[36]
She does not recall anyone questioning the
process followed during the restructuring. The project team
documented questions that
it received and a formal response was sent
to the HR community. Staff had various avenues to raise concerns;
namely line managers,
the assurance team, and an external ombudsman.
[37]
She did not attend consultation meetings.
She could not say whether such meetings were structured to explain to
employees the selection
tools that would be used. She was asked
whether employees were told who would be making the selections. She
replied that there
was a document that outlined the criteria to be
used. Employees were told that there would be an expression of
interest and that
the matrix would be used.
[38]
The respondent decided on the selection
process. She agreed that different selection tools could be used,
including performance
assessment. Performance ratings were not used
in the selection process. She was not involved in the decision to use
the matrix
as a tool. The respondent opted for a tool that would
result in desired outcomes. Management decided how to proceed. There
was
no agreement with employees in the use of the matrix as a tool.
It was put to her that the matrix was not explained and that it
was
not discussed as a selection process. She replied that the matrix was
not included in the pack during the consultation process.
The
applicant was familiar with the matrix process because the applicant
is in HR.
[39]
She gave evidence that the presence of more
people in a panel minimised bias and that those on the panel would
comment if they had
experience with a particular individual. The
panel included the applicant’s line manager.
[40]
The position of human resources manager was
generic. The applicant was the only person who applied for the
position that was given
to Du Sart. She denied that it was unfair to
ignore the preference of employees. Preferences were considered but
the business also
considers were skills are needed.
[41]
There was no provision for further
consultations when a candidate was unsuccessful. An individual was
now at risk. Such an individual
had to consult with the line manager.
There is a duty on the employer during the risk period to continue to
consult. She could
not comment whether there were no consultations
with the applicant during the risk period.
[42]
Du Sart was appointed in May 2011. The
position is based in Johannesburg. Du Sart was based in Cape Town. Du
Sart resigned in August
2011. Phakamile Bhengu (“Bhengu”)
was appointed following Du Sart’s resignation. There was an
interval
before Bhengu was appointed.
[43]
The position of HR advisor remained vacant
for months after 30 April 2011. She could not comment whether the
respondent gave any
consideration to placing the applicant in that
position. It was put to her that the respondent should have placed
the applicant
in the position of HR advisor to minimise the applicant
being retrenched. She replied that it was a different position and
that
it was at a lower level than that occupied by the applicant.
[44]
The applicant enquired on 11 April 2011
about positions in general. A vacancy was announced on 18 April 2011
offering the HR advisor
position. The position was advertised by way
of an email that was sent to all staff. The applicant received a
response to her enquiry
of 11 April on 19 April 2011. She was advised
that there were no positions. The position of HR advisor was not
mentioned in the
response to the applicant on 19 April 2011. The
applicant was not offered the position of HR advisor as a temporary
measure. The
position is a type of an alternative to minimise
retrenchment. The applicant did not apply for the position of HR
advisor.
[45]
The applicant gave the following evidence.
She attended consultative meetings on 2 and 9 March 2011. She was
told on 2 March 2011
that positions had been reduced from 7 to 4. The
organogram was presented on 9 March 2011 and she was invited to apply
on that
date. There was no explanation of how the selection process
would be done. She was told on 9 March 2011 to send an expression of
interest but was not given further information regarding the
selection process. The job profiles were available on the web. She
applied for the position of manager, human resources, in logistics.
[46]
She was sent a letter of regret on 16 March
2011. The letter did not record the reasons why she was unsuccessful.
She did not know
how her expression of interest was evaluated. She
challenged her non-appointment on 16 March 2011. She received a
response to her
challenge on 18 March 2011. The response did not deal
specifically with the points that she raised in her challenge. She
received
a retrenchment notice on 30 March 2011 effective at the end
of April 2011. She refused to sign the retrenchment notice because
the notice did not give reasons nor dealt with alternative positions.
[47]
She wrote to the respondent on 11 April
2011, raising various issues concerning her non-appointment including
the issue of alternative
positions. She received a response from
Maela on 19 April 2011. The response referred to the matrix. She did
not know about the
matrix before receiving the response. She knew of
the selection criteria but did not know of the matrix and the scoring
on the
matrix.
[48]
She also did not know that she was rated a
total of 50.5. She had not been consulted on any of the issues
mentioned in paragraph
2 of Maela’s letter of 19 April 2011.
[49]
She was not consulted on the position of HR
advisor and was not offered the position. The position was vacant.
She asked about alternative
positions in her letter of 11 April 2011.
There were no further consultations with her after her letter of 11
April 2011. She was
not told about alternative positions. She
investigated alternative positions on her own. She expressed an
interest in the position
of scheduling manager, a position in
logistics but outside of HR. She was advised on 28 April 2011 that
her request to be considered
for the position of scheduling manager
was unsuccesssful. Nothing happened after 28 April 2011.
[50]
She never received a response from Maela,
her line manager, concerning alternative positions. Maela treated her
unkindly. She escalated
her complaint against Maela to Maenetja, Ms
Raseroka and to the industrial relations manager. She later filed a
grievance in December
2010. Maenetja replied to the grievance
indicating that she wanted to meet with her and Maela. Maenetja
suggested that the meeting
take place in January because the
applicant was going on leave. A meeting took place in January 2011.
She insisted that the proceedings
be recorded but Maenetja and Maela
refused to have the meeting recorded. The grievance meeting did not
take place because of this
refusal.
[51]
Maenetja and Maela were part of the
selection panel. She did not know the composition of the panel when
she submitted her expression
of interest. The process to be followed
by the selection panel in evaluating the matrix was not discussed
during the consultations.
She would have objected had she known in
advance that Maenetja and Maela were members of the panel. There was
a standing grievance
against Maela and Maenetja was privy to that
grievance. She sensed bias on the part of Maenetja when Maenetja
refused to have the
grievance recorded.
[52]
She denied that Maenetja put her on
performance counselling in August 2010. She disputed the performance
improvement plan referred
to in the evidence by Maenetja. She pointed
out that the document was unsigned and that it was not in the correct
template. She
also pointed out that she had been assessed as meeting
expectations in her performance assessment conducted approximately
six months
before commencement of the restructuring.
[53]
The applicant pointed out that she would
not have been selected for the GIBS program, which started in January
2010 and finished
in December 2010, if her performance was below par.
The rationale for the GIBS program was to develop employees for
senior positions
within the respondent.
[54]
The applicant pointed out that she had,
unlike Du Sart, been in a managerial position in human resources for
a period of 10 to 12
years whereas Du Sart had been a manager for
approximately three years. The applicant worked in human resources at
various companies
including Edcon and MTN. This notwithstanding, she
was scored 1 out of 3 for experience in the matrix.
[55]
Du Sart had a certificate on oil which was
irrelevant to human resources. She, on the other hand, studied for
two years at Technikon
Northern Gauteng and at Vaal Triangle
Technikon.
[56]
She had great exposure in logistics whereas
Du Sart came from a finance background with no exposure in logistics.
She referred to
an instance where Du Sart asked the applicant to join
Du Sart in interviews for positions in logistics. Du Sart was meant
to conduct
the interviews on her own, but requested the applicant to
join her in conducting the interviews. Du Sart asked the applicant to
join her because Du Sart did not know what line to take during the
interviews. She told Du Sart that candidates would be scared
should
they find themselves being interviewed by two HR managers. It was put
to the applicant that it was reasonable for Du Sart
to request the
applicant to join her in the interviews because Du Sart was new in
logistics. The applicant replied that the request
was reasonable but
that it showed that there were gaps in Du Sart taking over logistics.
[57]
The applicant gave evidence that a score of
50.5 underrated her to a great extent. She had many years’
experience in HR when
she applied for the position in the new
structure. She understood HR tools and had been a project leader on a
number of projects.
She would have graded herself more than the score
allocated to her, but would not have graded herself beyond the
scoring for the
model candidate. She would have scored better in
relation to various competencies, including foundation skills and HR
functional
competency.
[58]
There is a close comparison between the old
and the new role. She pointed out that the requirements of “business
partnering”
manifests in many forms; such as in relation to
abuse of expenditure, identifying talent, and resolving disputes; the
“people
plan” requirement is part of performance
management; “resourcing talent” was part of performance
management,
and activities such as future planning were not new. She
was involved in rewards and performance.
[59]
The applicant did not challenge the
restructuring of human resources as a whole but challenged the
restructuring of her position.
She contended that the restructuring
did not impact her position. She admitted that the change from three
individuals to a single
individual was a significant reduction. She
however denied that she could not cope in the new position. She was
the only person
in the inland area who was running the logistics and
supply department. Refining was always under logistics. The
respondent had
closed about four terminals before the restructuring.
Refining was a small business unit. It would not result in much of an
increase
in the logistics headcount. Adding approximately 20 people
was not much of a burden. She covered coastal areas and she was
expected
to assist in Cape Town. The Cape Town terminal was smaller
than the inland region. The East London depot had no human resources.
There was a dedicated person in Cape Town but she assisted in Cape
Town. The respondent saw potential in her and that is why she
was
asked to help in Cape Town even though Cape Town had a dedicated
person. The respondent appointed her as a manager because
of her
experience and potential.
[60]
The description for the new job was not
specific. It was general to logistics. The job description did not
change. The headcount
changed from 3 to 1, except that the headcount
had already changed to 2 during the restructuring. She ran the inland
area whilst
Glenys ran the coastal area.
[61]
She was unaware of the selection criteria
that was used. She was told that a matrix was used. She asked her
attorneys to request
the matrix and an explanation of how the matrix
was applied. She did not approach anyone after 2 March 2011 to ask
about the selection
criteria. The job description was put on the
website on 9 March 2011. Her line manager told her that her position
was secured.
[62]
She did not raise any other challenge
before challenging her non-placement. She would not have known to
make a challenge because
her line manager had told her that her job
was secure. She was not given all information to raise a challenge.
She was taken aback
by the letter of regret.
[63]
She criticised the use of the matrix in
scoring and evaluating candidates. Du Sart was scored above the model
candidate, including
in relation to “suitability for the role”
and “taking the lead”. Du Sart was scored “4”
in
relation to consulting skills. She could not have been scored a
“4” because “4” was not a given parameter.
[64]
She cannot score herself above the model
candidate because the score for a model candidate is a defined
parameter. There is compensation
if the scores are above the maximum.
The respondent overcompensated in scoring Du Sart above the model
candidate. The scoring given
to Du Sart indicate a seasoned person
working outside of the HR scope. It is inappropriate to score beyond
parameters. There is
no rationale in the matrix to allocate scores
above parameters. She (i.e. the applicant) was prejudiced because the
respondent
gave Du Sart scores beyond defined parameters.
[65]
Du Sart had no managerial skills. She (i.e.
the applicant) had managerial skills and dealt with the respondent’s
international
business. Ms. Raseroka selected her for the GIBS
program. The program served a developmental purpose and not a
remedial purpose.
Participation in the program was expensive. Only
four participants were selected for the program. A participant in the
program
must be a performer. The respondent must be of the view that
such a person deserves a senior position.
[66]
She knew that there would be a selection
criteria. She consulted the website for the selection criteria. The
criteria were based
on experience and qualification. There was no
reference to a matrix. There was no mention that there would be
scoring. She was
unaware that there would be a competency matrix.
There was a deviation in relation to human resources compared with
the rest of
the business. The matrix was introduced for human
resources. The matrix was not mentioned for the business.
[67]
The procedure on restructuring was not
followed to the letter. She was not told why she was not placed.
There were deviations in
the procedure leading to her receiving the
letter of regret. The letter did not consider her motivation,
qualification or performance.
The calendar for HR was the same as for
the rest of the business. Things went wrong after 9 March 2011. Her
expression of interest
was not fully considered; her line manager
never explored alternative positions with her; two of her colleagues
expressed an interest
in a package. They were no longer interested in
HR.
[68]
She expressed an interest in one position
because she had been assured. She considered herself suitable for the
position. She expected
to be automatically considered for an
alternative position if she were not successful. She was not
considered for the HR advisor
position which was vacant. She should
have been considered for that position because the respondent
indicated that she was not
qualified for the HR manager position.
[69]
Applying for positions on the TAS means
applying externally from human resources. Employees from other
business units could apply
for the same positions. She expressed an
interest in two positions outside of human resources, namely
scheduling manager and scheduling
supervisor. The respondent had to
meet its promise to find a suitable vacancy for her, including
placing her in a junior position.
[70]
She enquired about available alternative
positions and was told that there were no alternative positions on
human resources. This
notwithstanding, a job in human resources was
advertised on 18 April 2011. She should have been automatically
placed in the position
of human resources advisor. It was put to her
that she did not refer to the human resources advisor role in her
letter of 11 April
2011. She replied that the respondent delayed for
seven days in responding to her letter and did not address her
concerns. The
respondent did not indicate that she was unsuitable for
the position of human resources advisor. She decided to consider
alternatives
outside of human resources on receipt of Maela’s
letter on 19 April 2011.
[71]
She was asked whether she received the
communication dated 18 April 2011 about positions on TAS. She replied
that she raised her
challenge on 11 April 2011 and that she received
a regret later on 19 April 2011. The letter of regret stated that the
position
advertised on 18 April 2011 was not available. The letter
did not specify alternatives. The placement process should have
entailed
seeking alternatives in human resources and then placing
positions in TAS if there was no position in human resources. A
letter
such as that from Maela dated 19 April 2011 means that the
respondent stated that there were no alternative positions in human
resources. This explains why she applied for a position of scheduling
manager, which is outside of human resources.
[72]
There was a deviation in the restructuring
process when it came to employees in human resources. Interviews were
held in the restructuring
of the rest of the business. There were no
interviews in relation to human resources.
[73]
She disputed that she could not demand an
interview because she scored low on the matrix. She contended that
the placement was subjective.
It is a stretch between a score
of 50 and 90. She had been in the position and there was no reason
why she got a dismal score.
She does not contend that she should have
exceeded all candidates but that she was comparing herself with Du
Sart. The respondent
had to consider location, experience, and
academics. She knew logistics.
[74]
Maenetja was not her direct line manager.
Maenetja joined the respondent in June and had hardly been with the
company to rate her.
She denied that she had a performance
improvement plant with Maenetja. She denied having a conversation
with Maenetja about her
performance. There was no document confirming
that she had such a conversation. She could not have been subjected
to a performance
improvement plan when she was attending the GIBS
program.
[75]
She does not know the document in which
Maenetja rated her performance. The document was a total fabrication
by Maenetja: she did
not have a discussion with Maenetja and she had
not seen the document before. She does not understand why her
performance was discussed
in her absence.
[76]
She was asked why Maenetja would have a
motive to collude with Maela when Maenetja had been with the
respondent for three months
at the time of the document contended for
by Maenetja. She replied that she did not know but that there is
evidence that she was
a good performer and that the respondent was
grooming her for a senior position.
[77]
Maela treated her badly. She launched a
formal grievance on 22 December 2010. She escalated the grievous to
Maenetja, Mr Ncobo and
Ms Raseroka. The content of the grievance is
not in the bundle. She denied that she escalated the grievance on a
by-the-way basis
in sending an email. She was asked why Maela became
an enemy by 15 March 2011 when Maela gave her a rating of meeting
expectations
in 2010. She replied that she launched a grievance at
the beginning of December and that the grievance was not heard. She
escalated
the grievance to Maenetja.
[78]
It was put to her that Maenetja was unaware
of the grievance concerning Maela and that Maela would not have sat
on the panel had
Maenetja been aware of the grievance. It was also
put to her that her evidence about Maela was not put to Maenetja. She
denied
that her evidence on Maela was not put to Maenetja, pointing
out that Maenetja had the opportunity to comment on her evidence
because
her counsel (i.e. applicant’s) put to Maenetja that
Maenetja was copied on an e-mail indicating that the grievance was
unresolved.
[79]
She denied knowing that Maela and Maenetja
would be on the selection panel. The identity of members of the panel
was not disclosed.
Employees were not told, during the consultations,
the names of members of the selection panel. She would have objected
to Maenetja
and Maela sitting as members of the panel had their names
been mentioned. Maenetja knew of the dispute between her and Maela
and
should have recused herself from the selection panel. She denied
attributing a slur to Maela and Maenetja.
[80]
She took up employment with Lanxess SA
(Pty) Ltd, a chrome mining company, as its head of human resources
following her retrenchment.
She should have been selected over Du
Sart. She had more experience in the field of logistics. She had
better qualifications and
education. She seeks compensation over a
period of 12 months.
[81]
The position of “HR Manager,
Refining, Supply and Logistics” undoubtedly had new elements
compared with the position
of “HR Manager – Logistics &
Supply”. Refining was one such new element. The new position
also combined the
work that was previously carried out in relation to
the coastal and inland areas operating as separate regions. The new
function
was being carried out by one employee. A primary issue in
this matter is whether the change was so fundamental that the
assertions
by the applicant could be said to be unmeritorious.
[82]
The applicant’s evidence is that she
assisted with work to be carried out in the coastal regions even
though she was based
in the inland region. She asserted that she had
experience in logistics and supply. She maintained that the addition
of refining
as part of the responsibilities of the human resources
manager would not result in an intolerable change in the headcount.
The
case for the respondent was that the new role required more of a
“higher-order” functioning by the incumbent, and not
only
managing of people.
[83]
A considerable amount of time was taken up
in the evidence by the applicant seeking to show that she was up to
the task and by the
respondent seeking to show that this was not the
case. The applicant complained that the respondent underscored her
and overcompensated
the score given to Du Sart. There is merit to
this complaint. This is illustrated by the fact that the applicant
had, undoubtedly,
superior formal qualifications in human resources
compared with Du Sart; together with the fact that the applicant has
more managerial
experience than Du Sart.
[84]
The new role encompassed logistics as part
of the functions to be carried out by the incumbent. The applicant
maintained that she
was seasoned in logistics. Her evidence was
not challenged, nor was it shown how Du Sart was the better candidate
in relation
to logistics. Du Sart’s immediate position was to
support the respondent’s finance business. This is to be
contrasted
with the applicant’s position which was in logistics
and supply. The applicant illustrated that Du Sart considered herself
unequal to the task of operating in logistics when Du Sart requested
assistance in conducting interviews for a depot manager.
The
respondent did not appear to appreciate the irony of the proposition
put to the applicant in cross-examination that it was
reasonable for
Du Sart to seek the applicant’s assistance because Du Sart was
new in logistics. That request was made some
time in April 2011. This
was after the applicant had been told that she was not considered for
the position that was given to Du
Sart.
[85]
The case for the respondent included that a
selection panel took decisions on whom to consider for positions in
the new structure
and that such decisions were subject to review by
an assurance panel. The respondent did not put up minutes recording
deliberations
by the selection panel. I highlight this aspect in the
light of the evidence by Maenetja that her evidence entailed
considerations
taken into account by the selection panel in not
appointing the applicant and in appointing Du Sart. The respondent is
a company
of international note. It would be expected to have a
formal record of its proceedings, more so were such proceedings might
become
disputed in the future, as is typical of a retrenchment
process. The court was therefore surprised that the respondent did
not
put up documents to support evidence on its behalf about
contemporaneous decision-making as it pertained to the applicant.
[86]
I also mention the absence of
contemporaneous material to support evidence on behalf of the
respondent in the light of exchanges
between Mr Nowosenetz, counsel
for the applicant, and Maenetja. My impression of Maenetja’s
evidence is that she was interpreting
documents, including the
content of Du Sart’s expression of interest, during her
evidence and that her evidence was
primarily based on the
interpretation given during the trial as opposed to her evidence
being a statement on deliberations by the
selection panel. Maenetja
maintained during cross-examination that the selection panel had
objective means to verify what candidates
wrote in their expression
of interest, but that such objective means were not included in the
record. It is puzzling that such
important material was not
introduced as part of the record given the nature of the dispute
between the parties.
[87]
It is material that the respondent did not
call any other person to confirm Maenetja’s evidence concerning
the non-selection
of the applicant. The evidence by Holness did not
take the matter further. She was not involved in the selection of
candidates.
A number of critical aspects to the evidence by Maenetja
pertained to Maela. Maela was the applicant’s line manager and
a
member of the selection panel. Maenetja, during her evidence,
justified the conduct of the respondent with reference to steps taken
by Maela leading to the retrenchment of the applicant. This was the
case particularly in relation to whether or not the respondent
took
steps to seek alternative positions for the applicant. Maela’s
evidence was also material in relation to whether or
not the
applicant signed a performance improvement plan with Maenetja. The
respondent did not call Maela as a witness. The respondent
would have
been entitled to oblige Maela to give evidence, including by issuing
a subpoena if necessary. This was not done. It
is inexplicable that
the respondent did not call Maela as a witness in the circumstances.
[88]
The applicant maintained that she would
have protested had she known that Maela and Maenetja were members of
the selection panel.
This would have been a fair apprehension by the
applicant. Maenetja had formed the view that the applicant’s
performance
was below par. This view influenced Maenetja’s
decision-making in the selection panel.
[89]
The respondent’s formal position, as
communicated to the applicant in explaining why the applicant was not
considered for
the new role, was that performance was not a selection
criterion. This was clearly not the case. Maenetja gave evidence that
members
of the selection panel were familiar with the performance of
the candidates and that performance was considered albeit it was not
a primary determinant in the decision-making.
[90]
Maenetja sought to underplay the issue of
performance in the decision-making by the selection panel when she
stated that performance
was not a primary lens in the decision-making
by the panel. She indicated that members of the panel were familiar
with the performance
of candidates but that this was ameliorated by
the presence of the assurance team. This can only mean that the
selection panel
did take performance into account. Maenetja agreed,
in any event, that the issue of performance was inseparable from
selection
considerations. She did not provide evidence on how the
assurance team ameliorated the taking into account of performance in
the
decision-making by the selection panel.
[91]
I find that there is merit to the
proposition put to Maenetja that the selection panel took personal
considerations into account
in relation to the decision-making
concerning the applicant. Maenetja had formed the view that the
applicant was not a performer.
This coloured her view of the
applicant at the time of the decision-making. The applicant had
raised a grievance regarding Maela.
The meeting to discuss a
grievance was held in January 2011. The grievance remained unresolved
when Maela sat as a member of the
selection panel that decided that
the applicant did not qualify for the new position. The fact of the
grievance coloured Maela’s
decision-making. I am not persuaded
by the submission on behalf of the respondent that the applicant is
not earnest in her apprehension
concerning Maela being a member of
the selection panel. Mr. Malindi, counsel for the respondent,
questioned why Maela was said
to have become an enemy in March 2011
when she rated the applicant as meeting expectations in the previous
year. The applicant’s
evidence that this was due her grievance
against Maela is credible.
[92]
Maenetja admitted that it would have been
inappropriate for Maela to participate as a member of the selection
panel when the applicant’s
grievance against her was pending.
Maenetja sought to underplay the issue of the grievance in her
evidence. She gave evidence that
she believed that the grievance had
been resolved. She must have known that this was clearly not the
case. This is illustrated
by the applicant’s reference to the
grievance in the applicant’s e-mail to Maela in April 2011.
The applicant
indicated that the grievance was unresolved. Maenetja
was copied on this e-mail.
[93]
The respondent did not adopt a coherent
approach when making selections for the position of “HR
Manager, Refining, Supply
and Logistics”. Maenetja
maintained in her evidence that candidates were considered for
positions in the new structure
with reference to competencies set out
in the matrix and that candidates were not compared with each other.
The bulk of her evidence;
however, was an attempt to demonstrate why
Du Sart was a superior candidate compared with the applicant.
[94]
It is evident that the selection panel had
latitude in applying the matrix. This is illustrated by the fact that
the selection panel
saw it fit to give points above points expected
of a “model candidate”. In addition, the decision-making
included considerations
that were not explicit in the matrix as part
of the criteria for assessing candidates. For example, Maenetja gave
evidence that
Du Sart scored more points because she gave more
examples. It was not a consideration in the expression of interest
that a candidate
would receive more points if a candidate gave more
examples. Maenetja agreed in cross-examination that assessments were
not strictly
limited to criteria recorded on the matrix. Her
evidence was that some of the considerations were implied in the
matrix.
[95]
Candidates would not have known that
additional considerations, not explicit in the matrix, would be taken
into account as part
of the assessments for the various positions.
This is more so because candidates did not know that they were to be
assessed against
competencies set out in the matrix. Similarly,
candidates would not have known in advance that they stood a better
chance of gaining
a bigger score by relating more examples of their
activities in their expression of interest. It is, in any
event, unclear
what might constitute “more examples” for
purposes of a candidate receiving a bigger score from the selection
panel.
[96]
I find that Maenetja’s evidence as to
why Du Sart was the superior candidate was based primarily on her
interpretation at
the time when she gave evidence. I am fortified in
this view because Maenetja, in her evidence regarding Du Sart, would
reflect
on the content of Du Sart’s expression of interest
before answering questions put to her. I also find that her evidence
concerning
why the new role differed from the previous one rested on
clichés concerning what was expected of the incumbent, such as
the incumbent having to operate at a “higher level”.
[97]
Maenetja was also determined to paint Du
Sart in the most favourable light, and the opposite concerning the
applicant. This is illustrated
by Maenetja’s insistence that Du
Sart’s LOE certificatewas equivalent to a junior degree. Du
Sart did not, in her expression
of interest, equate the LOE
certificate with a junior degree. She described the LOE certificate
as associated with Wits Business
School for the year 2010. It is
unclear how Maenetja could possibly have considered the LOE
certificate as equivalent to a junior
degree.
[98]
I find that there was no serious challenge
to the applicant evidence that she was more experienced than Du Sart
and that there was
no fundamental change to the substance of work to
be done by the incumbent in the new role. There was no serious
challenge to her
evidence that she was competent in logistics. Her
job before the restructuring entailed supply. She was not challenged
that she
assisted the coastal regions even though she was based in
Johannesburg. She was not challenged that refining was a minor
component.
She had superior managerial experience compared with Du
Sart. She had superior formal qualifications in human resources
compared
with Du Sart.
[99]
Du Sart’s formal qualification is an
LOE certificate (obtained in 2010) and an “HR Management
certificate” from
IPM (obtained in 2011). Both qualifications
are described as obtained during a single year. It is unclear
whether the qualifications
entailed full-time study or not. Du
Sart’s formal qualifications are to be contrasted with the
applicant’s.
She obtained a national diploma in human
resources from Technikon Northern Gauteng (1990-1992) and a B. Tech
degree in human resources
from the Vaal Triangle Technikon
(1995-1996). Du Sart was a training and development administrator at
Multichoice pay TV in 1995-1997.
The applicant was an HR employment
practice specialist at MNET in 1996-1999. Du Sart was an HR
generalist with Mweb in 1997-2003.
[100]
The applicant was the better candidate
compared with Du Sart. The applicant was not challenged in any
serious way during cross-examination
when she maintained that she was
equal to the task and that there were no fundamental changes to what
she was expected to do in
carrying out her functions as a manager.
[101]
I am of the view that the respondent
proceeded with undue haste to dismiss the applicant. The respondent
had a duty to minimise
the possibility of the applicant being
retrenched. The respondent had to consider alternative positions if
that meant avoiding
retrenching the applicant. The applicant made
independent enquiries about possible alternative positions outside of
human resources.
She was advised that those positions were not
available.
[102]
The respondent did not consider
alternatives to retrenching the applicant. The applicant enquired on
11 April 2011 whether the respondent
considered alternatives to her
retrenchment. Maenetja replied on 19 April 2011. She did not set out
alternatives that were considered
by the respondent.
[103]
Maenetja could not show an instance of
consultations with the applicant regarding alternatives to
retrenchment. She told the applicant
on 19 April 2011 that there were
no alternative positions, despite the fact that the respondent had
advertised the position of
HR advisor on 18 April 2011. Maenetja is
the Director: Human Resources for the respondent. It must be taken
that she is familiar
with positions that are available in the
respondent’s human resources department. It is thus
inexplicable that she told the
applicant on 19 April 2011 that there
were no alternative positions in human resources without mentioning
the fact that the position
of HR advisor was available.
[104]
Maenetja had no first-hand knowledge of
whether or not the respondent made alternative positions available to
the applicant. She
maintained that Maela did so. This was disputed by
the applicant. The respondent did not call Maela regarding whether or
not she
consulted with the applicant on alternative positions.
[105]
The respondent was duty-bound to consult
with the applicant on the position of HR advisor as an alternative to
retrenchment.
The position was never made available to the
applicant. Maenetja gave evidence that the applicant would in
all probability
have been appointed to this position because the
requirements for the position were less stringent compared with the
requirements
for the position of “HR Manager, Refining, Supply
and Logistics”.
[106]
Maenetja and Ms. Holness maintained that
the position of HR advisor was a junior position to that for which
the applicant had applied.
They implied that that is the reason why
the position was not offered to the applicant. Both Ms Holness and
Maenetja agreed that
the respondent had a duty to attempt to prevent
a retrenchment up until 30 April 2011. The applicant’s
retrenchment became
effective on 30 April 2011. The position of HR
advisor remained vacant after 30 April 2011. The respondent had a
duty to have offered
the applicant the position of HR advisor as an
alternative to the applicant being retrenched. The respondent could
not take a unilateral
view that the position was not to be offered to
the applicant because it was a junior position to that sought by the
applicant.
Consultation is not a unilateral process.
[107]
The respondent brought an application to
reopen its case. The purpose was to introduce into the record a
document that the respondent
contends is a signed performance
improvement plan referred to by Maenetja during her evidence. The
applicant opposed the application.
She challenged various aspects of
the documents, including that she did not sign the document. She set
out why she disputed the
signature as not being her’s. Maenetja
stated, in her affidavit in support of the application, that the
applicant signed
the document in the presence of Maela. Maela did not
confirm the allegations attributed to her by Maenetja. I am of the
view; however,
that the document should be admitted as part of the
record. Both parties raised the issue of performance during their
evidence.
I find however that the document does not take the case for
the respondent any further. That is because the case for the
respondent
is that performance was not a selection criterion.
Maenetja, in any event, gave evidence that the applicant’s
performance
had improved.
[108]
The applicant had brought a related
application under case number JS 54-11, in which she sought relief in
terms of section 189A
(13) of the LRA. The respondent opposed the
application and brought a Rule 11 application to dismiss that
application. The respondent
recorded in the pre-trial the minute that
it does not persist with its Rule 11 application. The parties agreed
that the pleadings
in case number JS 54-2011 are to serve as
pleadings for purposes of the dispute on procedural issues in this
application.
[109]
The dismissal of the applicant was
procedurally unfair. The selection criteria were unfair. The
evidence shows that the respondent
took performance into account in
making selections for the position of “HR Manager, Refining,
Supply and Logistics”,
notwithstanding the respondent’s
disavowment that performance was not a selection criterion. The
selection criteria were
also unfair because the respondent took
account of “implied” criteria in selecting applicants for
positions in the
restructured organogram. Applicants could not have
known to anticipate the content of such implied criteria.
[110]
The
dismissal was procedurally unfair also because the respondent did not
offer the applicant the position of HR advisor, which
remained vacant
after 30 April 2011.
“…An
employer may not dismiss an employee for operational requirements
when such employer has a vacant position the
duties of which the
employee concerned can perform with or without at least minimal
training […]. Where the employer has
a vacancy and the
employee can perform the duties attached to that vacancy, the
employer would be acting unfairly in dismissing
the employee without
offering the employee such a position and the ensuing dismissal would
be without a fair reason.”
[1]
[111]
I find that the dismissal was substantively
unfair. The respondent has not shown that the position of “HR
Manager, Refining,
Supply and Logistics” was so fundamentally
different from that of “HR Manager – Logistics &
Supply”.
The respondent also failed to demonstrate
that the applicant could not have carried out the duties expected of
“HR Manager,
Refining, Supply and Logistics”.
[112]
The respondent appointed Phakamile Bhengu
(“Bhengu”) to the position of “HR Manager,
Refining, Supply and Logistics”
following Du Sart’s
resignation in August 2011. There was an interval before Bhengu’s
appointment. Du Sart resigned
within six months of the dismissal of
the applicant. The section 189 notice to the applicant recorded that
she could be considered
for positions within six months of a
retrenchment. Manetja gave evidence that the applicant was not
considered for the position
following Du Sart’s resignation.
[113]
The respondent included Bhengu’s CV
as part of the record. Bhengu’s CV records that she had one
tertiary qualification,
being a national diploma in municipal
administration obtained from Mangosuthu Technikon in 1995. Bhengu’s
CV does not record
her employment history for the period 1996 to
1997. Bhengu was an “administrator” at IMATU during the
period 1998 to
1999. She was an “HR officer” at SARS
during the period May 2002 to January 2006. This background is
to be contrasted
with that of the applicant during the similar
periods. The applicant was an “HR employment practice
specialist” at
MNET during the period 1996 to 1999. She was a
recruitment specialist at the RAF and R&H Communications during
the period 2000
to 2007. There was no evidence as to why the
respondent considered Bhengu more suitable for the position of “HR
Manager,
Refining, Supply and Logistics”, unlike the applicant.
[114]
The
applicant does not seek reinstatement. She is entitled to
compensation. The applicant may well have accepted the position of
HR
advisor had that position been offered to her. This was not
done. The position was an alternative to dismissing the applicant.
Maenetja and Holness agreed that the respondent continued to have a
duty to secure alternative positions to the applicant as at
30 April
2011. “
The
main objective of the consultation process is to either avoid the
dismissal or to minimise its consequences on the employee.
Any of the
parties who frustrate this process must take full responsibility and
live with the consequence thereof”.
[2]
I
consider that compensation equivalent to twelve months of the
applicant’s monthly salary as at the time of her dismissal
is
fair in the circumstances.
[115]
The parties did not abandon the application
in case no. JS 54/2011. The parties agreed that the pleadings in that
case are to be
considered for purposes of the procedural dispute. It
is fair that the costs in that application be in the cause in case
no. JS
955/2011.
[116]
I make the following order:
116.1.
The dismissal of the applicant was unfair,
both procedurally and substantively.
116.2.
The respondent is ordered to compensate the
applicant in the amount equivalent to the applicant’s
remuneration over a period
of 12 months, calculated at the rate of
R46 000,00 per month.
116.3.
The
respondent is ordered to pay costs, including the costs of the
application to introduce further evidence.
______________________
________
O
Mooki
Judge
of the Labour Court (Acting)
Appearance:
On
behalf of the applicant:
L Nowosenetz
Instructed
by
Morare Thobejane Inc.
On
behalf of the respondent:
G Malindi SC
Instructed
by
Hogan Lovells (SA) t/a Routledge Modise Inc.
[1]
South African Airways v Bogopa and Others (JA 36/05)
[2007] ZALAC 10
(3 August 2007), at para 60.
[2]
Tetley v Caterplus (Pty) Ltd (JS286/09)
[2010] ZALC 166
(27 October
2010), at para 23.