About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 343
|
|
Mmusi and Another v Vemisani Security Services CC (JS906/10) [2015] ZALCJHB 343 (6 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS906/10
DATE:
06 OCTOBER 2015
Not
Reportable
MOLEFI
JUTAS
MMUSI
...............................................................................................
First
Applicant
TIMPANA
JOHN
RAMODIBE
..................................................................................
Second
Applicant
And
VEMISANI
SECURITY SERVICES
CC
............................................................................
Respondent
Delivered:
6 October 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicants approached the court by way
of a statement of claim to contest the fairness of their dismissal
based on the operational
requirements of the Respondent. They seek
reinstatement or compensation in the event that it is found that
their dismissal was
unfair.
Background:
[2]
The Applicants were both employed as security
guards by the Respondent and were based at a client’s site
(Mittal Steel, a
division of ArcelorMittal) in Vanderbijlpark, until
their dismissal on 30 July 2010. On 8 November 2009, the Second
Applicant had
authored a document titled ‘
Time
to wake up document’
addressed to
all security officers employed by the Respondent who were based at
the client’s site. In the document, various
issues of concern
were raised including
inter alia
,
bonuses, overtime, allowances, the dismissal of other colleagues, and
under payment of salaries.
[3]
On 25 March 2010, Mr. Moloi of ArcelorMittal
addressed correspondence to the Respondent’s Assistant
Operations Manager, Mr.
Khoarane, raising concerns about ‘unbecoming
conduct on the part of security personnel’, which was viewed as
being
disruptive to the client’s security operations. In this
regard, the complaint was about a letter was that circulated amongst
personnel inciting them to rebel against their Union representatives
and management.
[4]
In this letter, Moloi further indicated that
during the month of February 2010, he was asked by three individuals
employed by the
Respondent for a meeting to discuss their conditions
of service within the Respondent. He therefore requested that certain
unidentified
individual security personnel be removed from
ArcelorMittal’s premises.
[5]
On 29 March 2010, the Applicants were suspended
with full pay until 4 May 2010 when they were issued with notices to
attend a disciplinary
enquiry scheduled for 7 May 2010. The charges
pertained to their failure to notify or get permission from
management of the Respondent
to go and see the Works Manager of
ArcelorMittal.
[6]
On 10 May 2010, the Respondent addressed a letter
to the Applicants, advising them that the client had instructed it
that it did
not want them on its premises anymore, and it had been
decided to offer them alternative posting at a site in Standerton in
Mpumalanga
Province with effect from 14 May 2010. On 13 May 2010, the
Applicants sent a reply to the Respondent, effectively rejecting the
offer, and further contending that they viewed the offer of a
transfer to Standerton as punishment.
[7]
At
about the same time, the Applicants lodged a complaint with the
Department of Labour, and on 13 May 2010, correspondence was
sent to
the Respondent by the Department in which it was asked to investigate
several complaints lodged against it by its employees
pertaining to
conditions of service. On 6 June 2010, and in a letter dated 2 June
2010, the Applicants were issued with section
189 (3)
[1]
notices inviting them for consultations. Following a consultation
meeting that took place on 30 July 2010, the Applicants’
services were terminated with immediate effect on the same day.
The evidence:
[8]
The Respondent’s then Operations Manager, Mr. Anton Delport
testified as follows;
8.1
At the time of the dismissals, the Respondent had about 125 employees
of which 20 were based
at ArcelorMittal. Problems arose in November
2009 when the Applicants went to the management of ArcelorMittal and
complained about
their conditions of service under the employ of the
Respondent. ArcelorMittal informed them to raise those issues with
their employer.
8.2
The Applicants had then met with the Respondent’s management
where they had raised
their grievances. Management was however
unhappy with the fact that the employees had complained to a client
about their conditions
of employment, and they were advised that
disciplinary proceedings were to be instituted against them.
8.3
The Applicants nevertheless again went to one of ArcelorMittal’s
managers, Moloi and
raised the same grievances. They were called by
the Respondent to respond to the reason that they again went to a
client to complain
about their conditions of service when they were
told before that they should approach their employer instead.
8.4
When ArcelorMittal in the correspondence of 25 March 2010 advised the
Respondent that the
Applicants should be removed from site, they were
suspended and then offered an alternative posting in Standerton.
8.5
Delport had also had discussions with Moloi of the client and asked
him to take back the
Applicants. Moloi however refused to take them
back. ArcelorMittal was the Respondent’s only client in the
area and the alternative
posting was at Eskom site in Standerton. The
Applicants nevertheless rejected the offer on the basis that they saw
it as punishment,
and also that they had families, and could not
relocate to Standerton. Delport however testified that the Applicants
had not proposed
any alternative. The Applicants had referred an
alleged unfair labour practice dispute to the CCMA. That dispute was
heard on 7
July 2010 and was dismissed on account of the suspensions
having been uplifted on 10 May 2010.
8.6
Under cross-examination, Delport conceded that some of the issues
raised in the ‘
Time to wake up document’
were
legitimate concerns. He further conceded that the Respondent had made
an undertaking to address some of the grievances raised
with the
Department of Labour.
8.7
Delport also testified that other than the Standerton alternative,
the applicants were offered
alternative positions in Bloemfontein,
which offer was repeated at the CCMA hearing. He further testified
that when he gave the
Applicants the letter of 10 May 2010, he had
discussed with them alternatives, including arrangements in regards
to the transfer,
travel and accommodation. When the offer was
rejected, the Applicants remained on suspension. He nevertheless
conceded that he
never asked them for their views in regards to the
posting in Standerton.
8.8
According to Delport, the retrenchments were not as a consequence of
redundancy, but purely
because of allegations of misconduct against
the Applicants and their removal from the client’s site. In the
same vein, he
conceded that the dismissals were due to the
Applicants’ refusal to accept the Standerton post. He further
contended that
the termination date was agreed upon with the
Applicants.
[9]
The evidence of Mr. Malefetsane Khoarane, the Respondent’s
assistant operations manager was to the effect that the Applicants
were retrenched as they had refused the alternative posting to
Standerton. This posting entailed 15 days on and 15 days off duty,
and the Applicants were to be offered accommodation and transport. He
testified that this information was shared with the Applicants
in the
offices of the Respondent at the client’s site. He further
testified that the terms of the posting were fully explained
to the
Applicants and that they had not said anything in response.
[10]
Khoarane was also present in the consultation meeting held on 30 July
2010, and his contention was that the Applicants did
not make any
proposals after the posts in Standerton were discussed. He further
confirmed that he was aware that the client did
not want the
Applicants back on site even though their names were not mentioned in
the letter where a request was made to remove
certain security
personnel from the client’s site.
[11]
Khoarane further gave three reasons why the Applicants were
dismissed, viz, the refusal to accept the offer to take positions
in
Standerton, the fact that the client did not want them, and the
Respondent’s operational requirements. He further added
that
when the offer to Standerton was made, the Applicant’s response
was that they wanted nothing to do with Standerton.
[12]
The Second Applicant, Mr. Ramodibe’s evidence was that he
disagreed with any contention that the client did not want
him on
site. He confirmed that he received the letter dated 10 May 2010 from
the Respondent wherein the offer to Standerton was
made. The letter
was received on 11 May 2010 and was delivered to his house by
‘Billy’, who had not discussed its contents
with him.
Although the offer was made, no mention was made of travel
arrangements or accommodation. He and the First Applicant,
Mr. Mmusi
had then decided to respond by rejecting the offer as no details were
provided.
[13]
On 14 June 2010 they had received a letter informing them of their
intended retrenchment due to allegations of misconduct,
and they had
responded by asking for more details in regard to the allegations. No
response was however received. It was only when
they had attended a
matter at the CCMA that they became aware of correspondence of 25
March 2010 from the client in which it had
complained about security
personnel. He denied that any offer was made when they were at the
CCMA. He contended that they were
never informed that if they
accepted the offer there would be transport and accommodation
offered. He also testified that Delport
never informed them that
other employees in Standerton would be retrenched to make way for
them. At the consultation of 30 July
2010, the offer of Standerton
was not mentioned at all, and they were immediately dismissed after
that consultation meeting.
[14]
Under cross-examination, Ramodibe conceded that when attending to a
dispute at the CCMA, the offer of Standerton was mentioned
and they
were also advised of transport and accommodation arrangements. He
contended that the offer would have been considered.
At the
consultation meeting of 30 July 2010 they had not said anything as
every avenue for discussion was closed after the chairperson
of that
meeting told them that since the alternative posts were rejected
nothing further could be discussed.
[15]
Mmusi had sat in court throughout the evidence of Ramodibe and
confirmed that the circumstances of their cases were the same.
He
denied any involvement in the writing of the “
Time to wake
up document
”. He also testified that the details in regards
to the offer to Standerton were not provided or explained to them in
the
letter of 11 May 2010. They had also rejected the offer as they
viewed it as punishment, and also since it was intended for them
to
leave by 14 May 2010. He denied having said that he wanted nothing to
do with the offer when it was made, and further testified
that they
had not made any alternative proposals, and would not have done so as
they had realized that the Respondent had closed
all doors for any
proposals.
The
submissions and evaluation:
[16]
The
issue for determination is whether the dismissal of the Applicants
was fair. In circumstances such as in this case where it
is contended
that the dismissals were on account of the employer’s
operational requirements, in accordance with the provisions
of
sections 188 (1) and 192 (2) of the LRA, the onus is on the
employer
to prove that the reason for the dismissal was fair. In discharging
the onus, it is expected of the employer to show that
there was a
need to retrench, that there was a fair reason to retrench the
employees, and that the dismissals were effected in
accordance with
the requirements of a fair procedure
[2]
.
[17]
In
further summarising the applicable principles where the fairness of a
dismissal based on operational requirements is challenged,
Tlaletsi
JA (as he then was) stated the following in
Super
Group
Supply Chain Partners:
“
It
is trite that an employer is permitted to dismiss an employee for its
operational requirements. However, for the employer to
do so
successfully, it is obliged to have a
bona
fide
economic
rationale for the dismissal and to comply with the provisions of
sections 189 as well as section 189A of the Act
where applicable.
Section 189 imposes an obligation on the employer to consult the
employee or its representative on the matters
listed in
subsection (2). There is a duty on the employer not only to
consult the affected employee(s) but to take appropriate
measures on
its own initiative to avoid and minimise the effect of the dismissal.
The consultation envisaged by the Act is a ‘meaningful
joint
consensus-seeking process’ in which parties to the process
should attempt to reach some agreement on a range of issues
that may
best avoid the dismissal and where not possible to ameliorate the
effects of the dismissal for operational requirements.”
[3]
“
An
employer should not approach the consultation process with a
predisposition to a particular solution but to approach the process
with a mind open to persuasion to alternatives that are practical and
rational. The employee party or its representative should
be given a
fair opportunity to suggest ways in which job losses might be avoided
or the effects of the dismissal might be ameliorated
before the
dismissal. There also rests a duty on the employer to provide the
employee or its representatives with relevant and
sufficient
information that would place them in a position to make informed
representations and suggestions on the subjects specified
for the
consultation.
It
is not fair for an employer to shirk its statutory duty to consult
and create and onus on an employee to ensure that he or she
chases
the employer around to ensure that consultation takes place.”
[4]
Substantive
fairness:
[18]
The Respondent’s main contention was that the Applicants were
dismissed based on operational requirements as a direct
result of
their sole client refusing them access to its site, and further based
on the reason that the Applicants had refused to
accept alternative
positions available in Standerton. It was further submitted that
substantive reasons for the dismissal and retrenchment
process was
sound; that it was not for the Court to question the commercial
imperatives that underlie the decision unless an ulterior
motive was
established, and further that an employer can dismiss employees to
ensure its survival.
[19]
Submissions
made on behalf of the Applicants were to the effect that it was
unfair for an employer to dismiss an employee simply
because a third
party demands so. Reliance in this regard was placed on
Lebowa
Platinum Mines Limited v Hill
[5]
.
The
reasoning in this regard is that to allow a third party to insist on
a dismissal of an employee would violate the provisions
of section 5
(2) of the LRA because it would prevent the employee from exercising
the rights under section 189 of the LRA
[6]
.
The Court in
Lebowa
Platinum Mines Limited
had further stated that whether the dismissal of an employee would be
fair where it is as a result of a demand by a third party
would
depend on a variety of considerations including that;
a)
The
mere fact that a third party demands the dismissal of an employee
would not render such dismissal unfair;
b)
The
demand for the employee’s dismissal must usually enjoy a good
and sufficient foundation;
c)
The
threat by the third party to impose a sanction must be a real one.
d)
The
employer should, therefore, initially assess the reality of the
threat;
e)
The
employer should, secondly, assess the probable effect of the sanction
threatened by the third party;
f)
The
mere fact that the dismissal of the employee would ensure continued
smooth commercial operation is not sufficient to justify
termination
of employment. Something more is required;
g)
There
must be an objectively sound conclusion that dismissal is the only
option that is fair to both the employer and the employee;
h)
The
employee should make reasonable endeavours to dissuade the party
making the demand for the dismissal of the employee from persisting
therein;
i)
The
employer should properly investigate and consider all the
alternatives to the dismissal with a view to determining whether one
or more of them constitutes a reasonable alternative to dismissal;
j)
In
the process of reaching a determination whether or not there is a
reasonable alternative to the dismissal the employer must consult
fully and properly with the employee, afford him a proper opportunity
to make an input, and properly take his representations into
account
before arriving at a decision;
k)
It
is incumbent on the employer to ensure that the employee is aware
that non-acceptance by him of an identified reasonable alternative
or
alternatives would, or could, result in his dismissal;
l)
In
all its deliberations the employer must properly consider the extent
of the injustice to the employee that would be occasioned
by a
dismissal;
m)
Relevant
to the consideration of injustice to the employee would be the
question whether any objectively blameworthy conduct on
his part gave
rise to the demand for his dismissal.
[20]
Having had regard to all the evidence presented and the submissions
made, it is concluded that the dismissal of the Applicants
could not
have been for a
bona
fide
economic
rationale, and was accordingly unfair. My
conclusions
are based on the following;
20.1
An important distinguishing feature in this case is that it was not
the Respondent’s case that ArcelorMittal
had sought the
dismissal of the Applicants. As I understand the facts, it only
sought their removal from the site. The first
issue is to
determine whether indeed the client sought the removal of the
Applicants from its site. Reliance in this regard was
placed on the
client’s correspondence of 25 March 2010 wherein complaints
were made about alleged ‘unbecoming conduct
on the part of the
Respondent’s personnel on site’. The correspondence makes
general comments about a letter that was
circulated amongst personnel
inciting them to rebel against their then Trade Union and Management,
and also a meeting that was
sought by with the individuals concerned.
20.2
It is not known which letter was being referred to, and it can only
be assumed that this was in reference
to ‘
Time to wake up
document’
. However the correspondence does not mention who
the involved individuals are and with whom was a meeting requested,
and who had
refused to acknowledge the invitation to a meeting as
Moloi had alleged. Moloi on behalf of the client makes reference to
‘they’,
and ‘them’ without mentioning who
these individuals were and but for the fact that Rabodibe authored
the document,
it is not known who were the individuals that the
client sought to be removed from its premises.
20.3
Delport’s contention that Mmusi had co-authored the documents
is clearly incorrect as the latter had
not placed his signature on
it, and his further contentions that Moloi had told him that it was
the two Applicants that had made
the complaints clearly bordered on
inadmissible hearsay.
20.4
It is accepted that the Respondent was expected to react in
circumstances where its sole client in the area
had raised concerns
about the conduct of its personnel on site. This response was
expected where the conduct complained of posed
an operational risk.
However, there was a need to verify the allegations in question, and
the response needed to be fair and reasonable,
and be balanced with
the employees’ rights to fair labour practices.
20.5
The Respondent’s response however was to remove the Applicants
based on that correspondence and there
is no indication that any
attempts were made to verify the allegations against made against the
employees, and whether the employees
concerned were properly
identified. Furthermore, it is clear from the letter that
ArcelorMittal had not made any discernable threat
should the
unidentified individuals not be removed.
20.6
Of even more importance was for the Respondent to afford the
Applicants an opportunity to defend themselves
against any
allegations made against them by the client.
It
was common cause that the disciplinary enquiries against the
Applicants were abandoned, and there is no basis for a conclusion
to
be made that any form of misconduct on the part of the Applicants was
established. It can therefore be concluded that
objectively,
the Respondent had not established any blameworthy conduct on the
part of the Applicants that gave rise to their need
to be removed
from the client’s site.
The
alleged refusal to consider alternatives:
[21]
Despite concluding that the Applicants were guilty of some form of
misconduct without the benefit of a disciplinary enquiry,
the
Respondent had then embarked on a process of retrenching them. In
initiating consultations on 2 June 2010, the Respondent in
a letter
addressed to the Applicants informed them that as a result of their
‘misconduct’ the client did not want them
on the site and
there was therefore a need to retrench them. As correctly pointed out
on behalf of the Applicants, no misconduct
had been proven at the
time as the disciplinary process had been abandoned. The Applicants
had sought further information from
the Respondent in regards to the
need to retrench them. However no response was received in this
regard.
[22]
The second invitation to consult was issued on 27 July 2010, and the
same reasons that the client did not want the Applicants
on site were
given. The consultation meeting of 30 July 2010 was the one and only
that the Respondent had with the Applicants,
resulting in their
dismissal on the same date. The Respondent’s contention was
that the dismissal followed upon the Applicants’
refusal to
consider the Standerton alternative. It had also submitted that an
employer’s conduct cannot be seen to be unfair
in the event
that the employees obstruct or did not wish to engage in a
consultation process, and in this case, the Applicants
did not intend
to be part of the joint consensus seeking consultation process by not
making any contributions to it. It further
submitted that an employer
is under no obligation to persuade an employee to take up alternative
employment offered to him.
[23]
It is accepted that where employees within the context of a
retrenchment exercise refuse to consider reasonable alternatives
to a
dismissal, the employer cannot be accused of having acted
unfairly
[7]
.
It has further been held that there is nothing in law or in fairness,
that places an obligation upon an employer who offers an
employee
alternative employment in order to avoid retrenchment to make an
effort to convince the employee to accept the alternative
offer
[8]
.
It is further accepted that courts would be reluctant to come to the
assistance of employees who refuse reasonable offers of alternative
employment even if this entailed relocation to other areas
[9]
.
The
proviso
however in circumstances where the offer involves a relocation, is
that the employee should not be expected to be burdened with
the
costs associated with the relocation.
[24]
Central to this dispute is whether the offer to Standerton was made.
In line with the principles set out in
Lebowa
Platinum
Mines Limited,
and to the extent that the Respondent’s
contention was that the retrenchments were necessitated by the
clients’ requests
to remove the Applicants from its site, the
issue is whether if alternatives were offered to the Applicants,
there was full and
proper consultation with them in regards to those
alternatives, and whether they were afforded a proper opportunity to
make an
input. Furthermore, the issue is whether the Applicants were
made fully aware that non-acceptance of the reasonable alternative
would or could result in a dismissal. It is my view that the
Respondent was found wanting in this regard as shall be illustrated
below.
[25]
The Respondent’s contention was that the Applicants were
provided with further information on numerous occasions including
at
the CCMA about the alternative position. Delport’s evidence was
that the offer was first made on 10 May 2010. The Applicants
had
conceded having received correspondence in this regard. That
correspondence however stated that;
“…
.Please
be advised that in view of the fact that the client has indicated
that it does not want you anymore in its premises, as
a security
officer. Management has resolved to offer you an alternative post at
Standerton site with effect from 14 May 2010…..
Kindly
indicate on or before 13 May 2010 if you accept our offer….”
(Sic)
[26]
The Applicants’ contention was that the letter of 10 May 2010
was simply delivered to their homes when they were on suspension.
It
was common cause that the letters were delivered to the Applicants by
another person. Delport could therefore not have been
in a position
to explain the contents of the letters to them or the terms and
conditions of the posting to Standerton to them.
[27]
It was common cause that the Applicants were initially based in the
Vereeniging area, and it could surely not have been reasonable
for
the Respondent to expect them to make a life changing decision within
two days in view of the fact that they had only received
the letters
on 11 May 2010 and were expected to make a decision on 13 May 2010.
Furthermore, such a decision could not have been
made in
circumstances where the Applicants had not been furnished with
sufficient details regarding the posts in Standerton. The
offer was
clearly vague, and the Applicants could not be blamed for rejecting
it and seeing it as punishment.
[28]
The Respondent nevertheless did not provide such further information
as requested, and had issued an invitation to consult
on 2 June 2010.
There is a dispute in regards to the nature of consultations.
Delport’s contentions that he had previously
discussed the
alternative to Standerton prior to 2 June 2010 was denied by the
Applicants. Equally, his contentions that a further
alternative in
Bloemfontein was discussed with them was denied. Despite further
contending that the offer to Standerton was on
the basis of 15 days
on and 15 days off, and also that it came with transportation and
accommodation, the Applicants nevertheless
contended that these
conditions were never discussed with them. Delport had further
conceded that it was never mentioned in the
letter of 10 May 2010
that the Applicants were to report for duty on 14 May 2010 in order
to be transported to Standerton. He had
further conceded under
cross-examination that he never asked the Applicants of their views
in regards to the move to Standerton.
He had further conceded that
when the offer to Standerton was made, the Applicants were never
informed that the incumbents of those
positions in Standerton were to
be retrenched. Critical to Delport's evidence however was that when
the Applicants declined the
offer to Standerton they had remained on
suspension (in regards to the allegations of misconduct), and further
that they were dismissed
subsequent to rejecting that offer.
[29]
Other than Delport’s concessions, Khoarane’s evidence in
regards to the proposals in regards to the post in Standerton
was
even more confusing. This was mainly due to his propensity during
cross-examination to fail to answer direct questions posed
to him,
being long-winded and generally evasive even in response to mundane
questions. His credibility as a witness was clearly
found wanting.
[30]
On his version all the details of the offer were discussed with the
Applicants at the Respondent’s offices at the client’s
site, and their dismissal was as a result of refusing to accept the
offer. This was despite having conceded that they had not reported
at
work either at the Respondent’s premises or at the client’s
site since their suspension on 26 March 2010. He could
not state when
these discussions had taken place as they were not documented.
[31]
Khoarane had further conceded having delivered the letter of 10 May
2010 to them but could not recall whether he had explained
or
discussed its contents with them. He further conceded that he had not
kept a record of any discussions held with the Applicants
about the
offer except in respect of the meeting of 30 July 2010. He had
referred to meetings where the offer was previously made
but could
not recall when those informal meetings were held.
[32]
In the minutes of the meeting held on 30 July 2010, it was recorded
that the alternative to Standerton was rejected; that no
alternative
positions in Vereeniging existed, and further that the posts in
Standerton had been filled. Despite what was recorded
in the minutes,
Khoarane’s contentions was that the Applicants were to be
posted after LIFO was utilized to make room for
them, a fact which
the Applicants had not been made aware of. When it was pointed out to
him that the offer was not made on 30
July 2010 as the posts did not
exist, his response was that they had already rejected the offer in
any event. This was notwithstanding
his other version that when the
offer was repeated on 30 July 2010, the Applicant’s response
was to say nothing and agree
to be retrenched, and in the same
breath, had responded by stating that they wanted nothing to do with
Standerton.
Conclusions:
[33]
In the light of the above, it is should be concluded that the
Respondent had not established that there was merit in the
allegations
of misconduct made against the Applicants by the client,
and there was therefore no justifiable reason to remove them from the
client’s site. The alleged offer of alternative employment in
Bloemfontein was never made to the Applicants as alleged by
Delport,
whilst the offer to Standerton was not properly and fully discussed
with and communicated to the Applicants from 10 May
2010 when it was
first made to enable them to make informed decisions or meaningful
proposals. Even if the offer was discussed
at the level of the CCMA,
this could not have been within the course of a proper consultation
meeting, and it is trite that conciliation
proceedings at the CCMA
are without prejudice.
[34]
Any contention that the Applicants had refused to meaningfully
participate in any joint consensus seeking process is belied
by the
fact that they could not have done so without having been furnished
with the necessary information in regards to the proposals
made.
Furthermore, as reflected in the minutes of 30 July 2010, they were
not afforded an opportunity to consider any available
options as none
existed at the time, and in particular, the posts in Standerton had
been filled. It is apparent that any suggestion
that posts in
Standerton could have been made available by invoking LIFO is an
afterthought, and the Applicants had not been made
aware of any such
plans, especially in the one and only consultation meeting held with
them.
[35]
It is not sufficient for an employer to allege that an employee
failed to make any proposals in circumstances where any proposal
made
would not have had any effect, and where the employees are in essence
faced with a
fait accompli
. The consultation process held on
30 July 2010 was the only formal process held with the Applicants
with a view of ostensibly preventing
retrenchments. Nevertheless this
process was not only flawed but was indeed a sham, and it is apparent
that the Respondent had
approached that process with a predisposition
to a particular solution. Its sole purpose was merely to confirm the
termination
of the Applicants’ services as evident from the
immediate termination of their services after that meeting.
[36]
It therefore follows from the above that the Respondent has not
discharged the onus of proving that the dismissal of the Applicants
was fair. The Applicants and are therefore entitled to some relief.
The Applicants had sought reinstatement. In the light of this
being a
primary remedy, there is a need to determine whether it is
appropriate in the circumstances of this case. Section 193 (2)
of the
LRA require the Court to reinstate or re-employ the employee unless
circumstances under subsections (a) to (d) militate
against such an
order. It was submitted on behalf of the Respondent that it would be
unable to accommodate the Applicants due to
them not being allowed on
their sole client’s premises in the Vaal area. It is has
already been concluded that these allegations
have not been tested
nor proven.
[37]
It is however taken into account that even though Khoarane’s
evidence had been found to be lacking in credibility, his
contention
that the Respondent had in July 2014 retrenched 57 employees was
never contested. In the light of these considerations,
it is
determined that compensation would be the appropriate relief. Having
had regard to the gross nature of the unfairness of
the dismissal, it
is further determined that compensation in the amount equal to eight
months’ salary to each of the Applicants
would be just and
equitable. Other than this compensation amount, I did not understand
it to be seriously disputed that the Applicants
are further entitled
to outstanding salary in respect of May and June 2010. Further having
had regard to considerations of law
and fairness, there is no reason
why the Applicants should not be entitled to their costs.
Order:
a)
The dismissal of the First and Second Applicants was unfair.
b)
The Respondent is ordered to pay to the First and Second Applicants,
compensation in the amount equal to eight (8) months’
salary
calculated at their level of position and grade as at their date of
dismissal.
c)
The Respondent is further ordered to pay to the First and Second
Applicants, outstanding salary in respect of the months of May
and
June 2010.
d)
The Respondent is ordered to pay the Applicants’ costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On behalf of the
Applicants: Adv. Nalane
Instructed
by: Cheadle Thompson & Haysom
On
behalf of the Third Respondent: Adv. SU Roeloffs
Instructed
by: De Villiers & Du Plessis Attorneys
[1]
Of
the Labour relations Act, 66 of 1995 as amended
[2]
Super
Group Supply Chain Partners v Dlamini and Another
(2013) 34 ILJ 108 (LAC) at para 27
[3]
At
para [24]
[4]
At
para [25]
[5]
(1998)
18 ILJ 1112 (LAC)
[6]
In
reference to
Nape
v INTCS Corporate Solutions (Pty) Limited
(2010) 31 ILJ 2120
[7]
Freshmark
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2003) 24 ILJ 373 (LAC)
[8]
L
& C Steinmuller (Africa) Ltd v Shepherd
(2005) 26 ILJ 2359 (LAC) at para 7
[9]
SACCAWU
& others v Gallo Africa
[2007] ZALC 104
;
[2006] 1 BLLR 36
(LC)