South African Commercial & Catering Workers Union obo Bheki and Others v Entabeni Private Game Lodge (Pty) Ltd (JS1079/12) [2015] ZALCJHB 410 (18 November 2015)

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 410
|

|

South African Commercial & Catering Workers Union obo Bheki and Others v Entabeni Private Game Lodge (Pty) Ltd (JS1079/12) [2015] ZALCJHB 410 (18 November 2015)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no:  JS1079/12
In
the matter between:
SOUTH
AFRICAN COMMERCIAL & CATERING WORKERS UNION  obo J BHEKI
& 24 OTHERS
Applicants
And
ENTABENI PRIVATE
GAME LODGE (PTY) LTD
Respondent
Delivered:
18 November 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction and
background:
[1]
This
matter came before the court by way of a statement of claim in terms
of which SACCAWU challenged the procedural and substantive
fairness
of the retrenchment of its members that took place 31 July 2012.
[2]
The
Respondent operates in the tourism and hospitality business. The
background to the dispute is fairly common cause as succinctly

captured in the parties’ signed pre-trial minutes and is
further summarised as follows;
2.1
SACCAWU acting on behalf of its members had entered into wage
negotiations with the Respondent
on 16 May 2011. Negotiations had
reached deadlock and a dispute was referred to the Commission for
Conciliation, Mediation and
Arbitration (CCMA) on 5 July 2011.
2.2
Failing the resolution of the dispute, a certificate of outcome was
issued on 3 August 2011.
The parties had nevertheless agreed to
extend the period for further negotiations from August 2011 to
February 2012 in order to
allow the Respondent’s business to
improve and to give it an opportunity to re-evaluate its financial
position. During that
period the Respondent and SACCAWU had held a
meeting on 17 October 2011, followed by a meeting between the
Respondent directly
with the employees and shop stewards to explain
its financial position.
2.3
Wage negotiations resumed on 9 February 2012 and the parties again
reached deadlock on 6
April 2012. A dispute was again referred to the
CCMA on 9 May 2012, and following the issuing a certificate of
outcome, the employees
commenced with their protected industrial
action on 14 May 2012.
2.4
On 12 July 2012, SACCAWU and the Respondent agreed to end the lock
out and the strike action.
This resulted in a memorandum of agreement
between the parties on 16 July 2012 which was confirmed in writing on
17 July 2012.
The employees were to return to work with effect from
16 July 2012. A meeting between the Respondent and SACCAWU followed
shortly
the following day.
2.5
Prior to the resolution of the strike, the Respondent had held a
meeting with the employees
on 29 March 2012 where it had discussed
its financial position. On 2 May 2012 the Respondent issued a notice
to the employees informing
them of possible termination due to
operational requirements.
2.6
The Respondent had addressed correspondence to SACCAWU on a number of
occasions inviting
it for meetings. SACCAWU’s response was that
it was only available after 9 May 2012. Further proposed dates were
not suitable
for SACCAWU and on 14 May 2012, it had responded that it
would not be available on 16 May 2012 and for the whole month until 5
June 2012.
2.7
On 15 May 2012 the Respondent wrote further correspondence to SACCAWU
advising it that the
matter was urgent and its unavailability for the
whole month was unacceptable. SACCAWU was further advised that if it
did not provide
a date, the Respondent would proceed and consult
directly with its members and shop stewards.
2.8
When SACCAWU failed to respond, the Respondent then on 23 May 2012
invited employees to
accept voluntary retrenchment. Three employees
accepted the offer.
2.9
A meeting was held between the Respondent and the shop stewards on 28
May 2012 regarding
possible retrenchments due to the Respondent’s
financial position. A further meeting was held with SACCAWU on 6 June
2012.
2.10    On
14 June 2012 the Respondent addressed correspondence to SACCAWU
stating that the union had a duty to cooperate
and participate in the
retrenchment process. The Respondent reiterated that it was not
making any profit and it implored SACCAWU
to consult with its members
failing which it would have no choice but to proceed with the
retrenchments.
2.11    A
meeting took place between the Respondent and SACCAWU on 5 July 2012.
Flowing from that meeting, the Respondent
on 10 July 2012 confirmed
that it had no option but to restructure.
2.12    On
16 July 2012 the Respondent confirmed that it would proceed with the
restructuring and gave SACCAWU until
19 July 2012 to consult with its
members. On 23 July 2012 the Respondent held a further meeting with
the employees and shop stewards.
On 24 July 2012 the Respondent
confirmed the job categories to be affected by the restricting being
the drivers, storemen, bar
waiters, rooms, kitchen, front office and
management.
2.13    On
25 July 2012 the Respondent gave notice of retrenchment, and all 33
employees affected were retrenched
on 31 July 2012.
Issues in dispute:
[3]
SACCAWU
disputes the procedural and substantive fairness of the retrenchment,
contending that there was no need to retrench. It
further contends
that the reason for the dismissal was due to the individual
applicants having participated in a protected strike.
The Respondent
on the other hand contends that there was in general a need to
retrench due to financial difficulties it faced,
which the Applicants
were aware of since 2011. As a result of these difficulties in 2012
it had to close some of its camps. It
further contended that the
retrenchment process commenced prior to the strike action on 29 March
2012 and was finalised only after
the strike action was ended.
[4]
The
selection criteria used is not disputed. SACCAWU nevertheless
contends that since there was no need to retrench, no proper
consultations were held prior to the retrenchments being effected. It
further holds the view that the meetings held were not for
the
purposes of consultations but were held for the purposes of wage
negotiations and the resolution of the strike.
The
evidence:
[5]
Evidence
led on behalf of the Respondent by its Group Financial Manager Mr.
Andries Wolmarans was as follows;
5.1
The Respondent is in the hospitality business and provides guest
services in the form of
lodges. Following the wage negotiations held
between the parties in May 2011, the parties had agreed to an
extension until August
2011. At the time, the Respondent was making
loses, and the purpose of the extension was to enable the Respondent
time to improve
its financial position.
5.2
At the meeting held with SACCAWU on 17 October 2011, the financial
position of the Respondent
was restated and SACCAWU was informed that
the Respondent had not made profit in the last five years; that
measures such as retrenchments
at the Respondent’s head office
and salary decreases were implemented to improve the financial
position.
5.3
In further illustrating the parlous financial position of the
Respondent, reference was
made to a summary of its financial
statement for the period June 2008 to December 2012
[1]
.
During the 16 months period, only in June 2010 was a marginal profit
made, and the total losses made over that period amounted
to R3.2
million. There was essentially no return on investments.
5.4
The occupancy levels
[2]
determined any profits and the financial statements indicated that
from 2008 there was a consistent drop in the occupancy rate.
Amongst
factors that contributed to the drop in occupancy rates was an
increase in competition for accommodation prior to the 2010
World
Cup, which saw lodges struggling and some of them closing down; the
world-wide recession and low occupancy rates. Despite
efforts by the
Respondent’s shareholders to invest more money in the business,
attempts to sell off assets and shares in
the company with a view of
raising money, returns failed to materialise as income raised was
utilised mainly towards the payments
of salaries. It had reached a
point where the shareholders could not continue putting money into
the business and the Respondent
had no other sources of income to pay
for its expenses.
5.5
The wage negotiations with SACCAWU had resumed in February 2012 and
deadlock was reached
in April 2012. The Respondent as a result of
loses made could not meet SACCAWU’s wage demands, and this was
emphasised in
meetings where discussions were held with both SACCAWU
and the employees surrounding ways and means of improving the
business.
As at March 2012 the financial position of the Respondent
had deteriorated as the occupancy rate was at 15%. SACCAWU and the
employees
were showed all the financial statements, and were aware of
the Respondent’s financial position and could see that the
occupancy
rate was consistently low.
5.6
Between March and May 2012 there had still been no improvements. The
strike action between
14 May 2012 and 16 June 2012 did not assist in
alleviating the Respondent’s financial problems. When the
memorandum of agreement
was signed in July 2012, the Respondent could
only afford to pay employees minimum wages as per the sectoral
determination.
5.7
In the light of the Respondent’s financial position since 2008,
it was therefore no
true that there was no general need to retrench.
Currently, the Respondent has 20 employees and the occupancy rate had
marginally
increased to a consistent 42%. As a result of the
restructuring process, other than the 33 retrenched in July 2012,
five were previously
retrenched in 2011 and 8 had taken voluntary
packages. Furthermore, one side of the business (a lodge) was closed
down for a period
of 12 months from July 2012.
5.8
Alternatives looked at prior to retrenching the employees included
outsourcing some of the
support functions, and SACCAWU had been
invited to look at the alternatives or suggest any. Wolmarans denied
that any decision
was taken in May 2012 to retrench employees as
meetings were on-going. He further denied that any decision was taken
in June 2012
as SACCAWU had not been available during that month for
meetings. He further denied any contention that no consultations took
place
prior to the retrenchment, and disputed any suggestion that the
dismissals were related to or due to the strike action. He contended

that affected employees were not victimised for their participation
in the strike action as 101 employees took part in the strike
and
only 33 of them were retrenched.
5.9
Under cross-examination, Wolmarans further testified that the purpose
of the meeting held
with employees on 29 March 2012 was a
consultation process and was to discuss the Respondent’s
financial position and its
occupancy levels. Despite the exchange of
communication in regards to scheduling of meetings, the union was not
available for the
whole month and the indication according to
Wolmarans was that it was not prepared to consult.
5.10    He
conceded that the Respondent was given at least six months to improve
its financial position. He denied
however that the Respondent had
ulterior motives when it issued notices on 2 May 2012, or that the
retrenchment notices were issued
to circumvent the strike action.
[6]
The
Respondent’s Resorts Security/Health and Safety Manager, Mr.
Willem Koen’s testimony was as follows;
6.1
He was present in a meeting held with shop stewards and other
employees on 28 May 2012 during
the strike. At that meeting, the
issue of possible retrenchments was discussed, and possibilities of
outsourcing of other departments
and vacancies in surrounding lodges
were also looked at. Employees were invited to look at alternatives
and make suggestions as
to how the company could be salvaged.
6.2
At the meeting, the attitude of the shop stewards according to Koen
was to be uncooperative
and obstructive. The shop stewards had
displayed arrogance, had walked out at some point and appeared to
have viewed the entire
process of consultation as a waste of time.
[7]
The
Applicants’ evidence as presented by Ms. Salome Rakobela, the
then shop steward and Senior Matron was as follows;
7.1
The
meeting held on 17 October 2011 was in respect of wage negotiations,
and not retrenchments. She was also part of the meeting
held on 28
May 2012 and although mention was made of retrenchments, she did not
know whether the purpose of that meeting was consultative
or not, as
she was not familiar with the law. She conceded having said that the
meeting was a ‘waste of time’, as the
shop stewards and
employees who had attended the meeting did not know the law and thus
it was a waste of time talking to them rather
than the Union
organiser.
7.2
She
denied having walked out of the meeting and testified that she had
differed with management on various issues and had opted
to keep
quite. She further denied having seen the financial statements during
the meetings and contended that she saw them for
the first time
during these proceedings.
7.3
The
retrenchments were as result of the strike action embarked upon by
the employees because only a few of those that were on strike,

including two shop stewards were retrenched. This was also evident
from the fact that the strike action ended on 16 July 2012 and

immediately thereafter on 31 July 2012 the retrenchments had
followed. She further testified that subsequent to those
retrenchments,
other employees were recalled and re-employed. She
denied that any meetings held with the Respondent were for the
purposes of discussing
retrenchments.
7.4
Under
cross-examination, she denied that the company had financial problems
despite the financial statements placed before her for
the period
2008 to 2012. She conceded that in the meeting of 29 March 2012 the
company’s financial position was discussed.
She still however
contended that she had no knowledge of the company’s financial
losses.
7.5
She
also conceded having attended the meeting of 28 May 2012 as a shop
steward where management had discussed issues surrounding

retrenchments. She however contended that they were not informed of
the intention to retrench. When it was put to her that management
had
informed that the company found itself in a position where it was
forced to retrench, she conceded that this was so, but that
however
they disagreed with the retrenchments as the Respondent did not have
any financial problems.
7.6
It
was further put to her that attempts were made to consult with the
employees and the Union and further that they were informed
to
consider alternatives to retrenchments. Her response was that the
Respondent did not wait for the Union, and had instead discussed
the
matter with the employees who had no knowledge of labour laws. It was
according to her, unfair for management to speak directly
to the
employees and shop stewards. She nevertheless conceded that issues
pertaining to retrenchments were discussed.
7.7
She
further conceded that the Union was invited and did not attend
meetings hence the respondent discussed the matter directly with
the
employees and shop stewards. She further conceded that no decision
was taken in May and June 2012 to retrench employees. She
insisted
that the retrenchments were rushed after the strike action was ended.
This was despite it being put to her that notices
of retrenchments
were only issued on 2 May 2012 and the retrenchments were effected on
31 July 2012.
7.8
In
regards to her contention that the retrenchments were as a result of
the strike action, she could not comment when it was put
to her that
firstly, the retrenchment process started earlier than the strike
action and ended after that action and secondly,
that only 33 out of
202 employees were retrenched, and thirdly, that one of the camps had
closed down after the strike for a period
of twelve months.
[8]
Mr.
Malebo Mphahlele, the Union’s local organiser’s testimony
was as follows;
8.1
The purpose of the meeting of 9 May 2012 was to discuss the
retrenchment of employees. During
the strike which commenced on 14
May 2012, various meetings were held to end the strike, and not to
discuss retrenchments.
8.2
Under cross-examination, he conceded that the Union had received a
letter on 2 May 2012
inviting it to consult and to make proposals. He
conceded that the Respondent had made various suggestions for
meetings to be held
but that the Union was not available on certain
dates including for the whole month of May 2012. He further conceded
that the Respondent
had sent correspondence to the Union on 15 May
2012 requesting a meeting to consult over possible retrenchments and
that the Union
did not respond until 31 May 2012 when it suggested
the date of 6 June 2012. He further conceded that the Respondent had
made various
attempt to accommodate the Union.
8.3
He confirmed having attended the meeting of 6 June 2012. Despite it
being pointed out to
him
[3]
that
retrenchments were discussed in that meeting, including alternatives
considered by management, he insisted that the meeting
had nothing to
do with retrenchments. His reasoning was that the Union wanted the
issue of the strike to be finalised first before
retrenchments could
be discussed.
8.4
He further conceded that between 2 May and 23 July 2012 the Union was
invited on no less
than seven occasions for consultations and had
failed to meet with the company. He further conceded that the
Respondent did not
take any decision to retrench until on 26 July
2012.
Evaluation:
[9]
Three
issues are central to this dispute. The first is whether there was in
fact in general, a need to retrench the employees. Secondly,
whether
the retrenchments were not in retaliation to or due to the strike
action embarked upon by the employees, and thirdly, if
there was a
genuine need to retrench, whether the Respondent had followed a
proper consultation process.
[10]
The
starting point is Section 23(1) of the Constitution
[4]
which provides that “
everyone
has the right to fair labour practices”.
The
Labour Relations Act
[5]
(the
LRA) gives effect to this constitutional right, and provides in
section 185, that every employee has the right not to be unfairly

dismissed.
[11]
Section
188(1)(a)(ii) of the LRA provides that a dismissal is not fair if the
employer fails to prove,
inter
alia
,
that ‘
the
reason for dismissal is a fair reason based on the employer’s
operational requirements’
.
Furthermore, section 188(1)(b) provides that a dismissal which was
not effected in accordance with the fair procedure is
unfair.
[12]
Section
213 of the LRA defines ‘
operational
requirements’
to
mean requirements based on economic, technological, structural or
similar needs of an employer. Item 1 of the Code of Good
practice on
dismissal based on operational requirements states that:
“…
..As
a general rule, economic reasons are those that relate to the
financial management of the enterprise. Technological reasons
refer
to the introduction of new technology that affects work relationships
either by making existing jobs redundant or by requiring
employees to
adapt to the new technology or a consequential restructuring of the
workplace. Structural reasons relate to the redundancy
of posts
consequent to a restructuring of the employer‘s enterprise.”
[13]
The
onus is on the employer to prove the fairness of the dismissal. In
this regard, the Labour Appeal Court in
Super
Group Supply Chain Partners v Dlamini and Another
[6]
restated
that it is expected of the employer to discharge the onus of proving
that that the dismissals of the employees were fair.
In doing so,
evidence should be presented to show that there was indeed a need to
retrench, that there was a fair reason to retrench
the employees,
that the selection criteria was fair; and the dismissals were
effected in accordance with the requirements of a
fair procedure.
Proper
consultations?
[14]
The
Respondent as already indicated had at the time of the retrenchments,
a total workforce of 202 employees, and 33 were ultimately
retrenched
on 31 July 2012.  The applicable provisions in this regard are
those in section 189A of the LRA. These provisions
received attention
in
Edcon
v Steenkamp and Others
[7]
,
where
the Labour Appeal Court held that;
“
Having
carved out distinct alternative procedures for the resolution of
disputes about the substantive fairness of large scale retrenchments,

section 189A of the LRA additionally creates a distinct procedure for
disputes about procedural fairness in dismissals falling
within the
ambit of the section. Section 189A(18) of the LRA provides that the
Labour Court may not adjudicate a dispute about
the procedural
fairness of an operational requirements dismissal referred to it in
terms of section 191(5)(b)(ii) of the LRA. Consulting
parties who
allege procedural unfairness in the consultation process are now
required to approach the Labour Court by way of an
application made
in terms of section 189A(13) of the LRA within 30 days after the
employer has given notice to terminate or, if
notice of termination
is not given, within 30 days of the date of dismissal. In an
application made in terms of section 189A(13)
of the LRA, the
consulting party may seek an order, if need be on an urgent basis,-
(a)
compelling
the employer to comply with a fair procedure;
(b)
interdicting
or restraining the employer from dismissing an employee prior to
complying with a fair procedure;
(c)
directing
the employer to reinstate an employee until it has complied with a
fair procedure; or
(d)
awarding
compensation, if an order in terms of paragraphs (a)-(c) is not
appropriate
.”
And
“
The object
of section 189A(13) of the LRA, as appears from a purposive
interpretation of section 189A read as a whole and in context,
is to
separate out procedural issues and to provide a means whereby the
consultation and facilitation processes are not undermined
by
procedural flaws. It offers a useful expedient to the parties to seek
the assistance of the court, acting as the guardian of
the process,
to ensure that the issues are adequately identified, considered and
ventilated in the process of consultation or facilitation
before it
ends. It thus ensures that only disputes about the fairness of
substantive reasons and outcomes will generally be subjected
to
resolution by means of collective action or in a trial involving the
hearing of oral evidence”.
[15]
In the light of the above principles, it would not be necessary to
deal with the alleged procedural unfairness of the dismissals
save to
state the following;
SACCAWU’s
main submissions in regards to consultations was that these were not
meaningful as they were held with employees
and shop stewards who
were not familiar with the process and thus could not meaningfully
make any contribution to that process.
The common cause facts however
indicated that the notice of contemplated retrenchments was issued on
2 May 2012. A total of seven
invitations were issued to SACCAWU for
consultations between 2 May 2012 and 20 July 2012.
[16]
A consultation meeting was held between the Respondent and the shop
stewards on 28 May 2012, which was followed by another
consultation
with SACCAWU on 6 June 2012. Following a further meeting with SACCAWU
on 5 July 2012, the latter was informed on 10
July 2012 that the
Respondent would proceed with restructuring. On 25 July 2015 notices
of retrenchments were issued and still
SACCAWU had not taken any
action until after the process of retrenchment was completed on 31
July 2012.
[17]
From the above, it is apparent that SACCAWU was fully aware of the
contemplated retrenchments and planned consultation meetings.
If it
was aggrieved by the process at any stage prior to or immediately
after 25 July 2012, it should have approached the court
in terms of
section 189A(13) of the LRA. To the extent that there is a
substantive component to the consultation process which
the
Applicants may have cause to be aggrieved about, the evidence placed
before the court as shall be illustrated below nevertheless

established that there was indeed a commercial and business rationale
for the decision taken by the Respondent.
Was there in general a
need to retrench?
[18]
The question to be determined in this regard is whether the
Respondent had a genuine and fair operational reason for deciding

that retrenchments were necessary.
The
test applicable in determining the substantive fairness of
retrenchments was also restated in
Super
Group
.
The LAC endorsed its earlier decision in
Kotze
v Rebel Discount Liquor Group (Pty) Ltd
[8]
where
it was held that;
“
The final
decision to retrench must be informed by what transpired during
consultation. That is why consultation must precede the
final
decision. The requirement of consultation is essentially a formal or
procedural one, but it also has a substantive purpose.
That purpose
is to ensure that such a decision is properly and genuinely
justifiable by the operational requirements or by a commercial
or
business rationale.”
And
“
The function
of the court in scrutinising the consultation process is not to
second-guess the commercial or business efficacy of
the employer’s
ultimate decision but to pass judgment on whether such a decision was
genuine and not merely a sham. The court’s
function is not to
decide whether the employer made the best decision under the
circumstances, but only whether it was a rational
commercial or
operational decision, properly taking into account what emerged
during the consultation process.”
[19]
A further principle established over time in determining the
substantive fairness of retrenchments is that a court is not entitled

to dictate to an employer as to the most commercially viable way of
running its business.  This however does not imply that
the
decision by an employer should not be scrutinized for the purpose of
establishing whether there was justification for that
decision
[9]
.
Thus unless the court is satisfied that there was a proper
explanation of the reasons for the dismissal, which reasons are
supported
by credible evidence, the employer will not be regarded as
having discharged the onus placed on it to prove the existence of a
substantively fair reason for the dismissal.
[20]
In his closing argument, Mr. Lekala on behalf of the Applicants had
submitted that the fact that the Respondent had re-employed
some of
the dismissed employees indicated that there was no need to retrench,
and further that the Respondent failed to furnish
the employees and
the Union with the necessary financial statements to support its
contention that its business was not making
a profit.
[21]
Advocate Prinsloo for the Respondent had submitted that in
determining whether the decision to restructure the Respondent’s

business operations was commercially rational, the evidence of
Wolmarans, its Group Financial Manager is instructive. Evidence
led
in this regard pertained to the background and current state of the
Respondent’s financial position, and it is my view
that despite
the Applicants’ denials that the Respondent’s financial
position was not a justification for retrenchments,
such evidence
nevertheless indicates otherwise.
[22]
Firstly, in the 16 months between June 2008 and December 2012, only
once in June 2010 did the Respondent make some profit which
was in
any event marginal. In essence, the Respondent had consistently over
a period of five years failed to make any profit, and
had as a
result, suffered losses in a region of R3.2 million. Nothing
presented on behalf of the Applicants could gainsay this
evidence.
[23]
Secondly, and as further testified by Wolmarans and supported by
documentation
[10]
, the
Respondent’s occupancy rate, which was its core business was at
55% in the 16 months up to June 2008; 45.70% in the
12 months up to
June 2009; 38% in the 12 months up to June 2010; 34.85% in the 12
months up to June 2011; 42.76% in the six months
up to December 2011
and 42.40% in the 12 months up to December 2012. In regards to the
financial position of the Respondent and
these figures in the periods
mentioned, it was correctly pointed out on behalf of the Respondent
that these could not be disputed
during the cross-examination of
Wolmarans.
[24]
Rakobela’s insistence on the other hand that the Respondent did
not have such problems was clearly not based on any tangible
evidence
to indicate otherwise. She had grudgingly conceded during
cross-examination that during the consultation process, the
financial
position of the Respondent was discussed on numerous occasions. As it
was also correctly pointed out during her cross-examination,
her own
personal views on the financial position of the Respondent were not
in any event relevant, as they were not supported by
any evidence to
indicate otherwise.
[25]
A third consideration pertaining to the Respondent’s finances
was its inability to meet the employees’ wage demands.
It was
common cause that wage negotiations had commenced in May 2011. The
parties had agreed to extend the period of negotiations
from August
2011 until February 2012. The Applicants had conceded that this was
for the purposes of allowing the Respondent time
to improve its
financial position. This in my view can only be confirmation of
acknowledgement on the part of SACCAWU and the employees
of the
Respondent’s dire financial position. It therefore does not
make any sense to contend that the Respondent did not
have any
financial problems necessitating a need to restructure.
[26]
As at February 2012, the financial position had not changed and still
the Respondent could not afford to meet the wage demands
made by the
employees. It was not disputed that the Respondent could only afford
to pay minimum wages as per the sectoral determination.
This was
despite its efforts to sell off some of its assets or shares and
other measures taken to improve the situation. Despite
all these
attempts and discussions of the Respondent’s financial position
in March 2012, I fail to appreciate any insistence
on the part of the
Applicants that the Respondent had not been faced with a dire
financial position.
[27]
The Respondent’s financial position as also illustrated during
the cross-examination of Rakobela did not change much
as evident from
the closure of the Respondent’s Ravine Camp for 12 months
between July 2012 and July 2013. To this end, it
should be concluded
that decision taken by the Respondent to embark on a retrenchment
process was genuinely justifiable, as it
was based on a commercial or
business rationale.
[28]
A further ground relied upon by the Applicants in contending that the
Respondent’s financial position was not dire was
the allegation
that it had re-employed some of the ex-employees after the
retrenchments. Wolmarans had no knowledge of two ex-employees

subsequently re-employed after the retrenchments. Rakobela had
testified that she was aware of three ex-employees that were
re-employed
as they are her neighbours.
[29]
The Respondent did not strenuously challenge the version that some
ex-employees were re-employed. Nevertheless, to the extent
that that
the issue was raised within the context of disputing that there was a
need to retrench, the re-employment of three ex-employees
out of a
total of 33 can hardly in my view be considered as a factor
indicating that the Respondent’s finances prior to those

retrenchments were sound. It is further not known when these
ex-employees were re-employed and the circumstances that led to their

re-employment. On the whole however, there is no merit in the
argument advanced in this regard.
Were
the retrenchments due to the protected strike embarked upon by the
employees?
[30]
Ordinarily, this issue would have been dealt with within the context
of an automatically unfair dismissal as contemplated in
section 187
(1) (a) of the LRA
[11]
. It was
however never the Applicants’ case that their dismissal was
automatically unfair as can be gleaned from the fact
that the dispute
referred to the CCMA pertained to an alleged unfair dismissal
relating to the Respondent’s operational requirements.

Furthermore, the Applicants’ pleadings do not in any manner
indicate any allegation of an automatically unfair dismissal.
[31]
The allegation that the employees were retrenched as a result of
their participation was raised for the first time in the parties’

pre-trial minute
[12]
. The
Respondent however did not raise any preliminary point in this
regard, and to the extent that it had dealt with these allegations,

it is deemed convenient to equally deal with them.
[32]
It was argued on behalf of the Applicants that the timeline of events
indicate that the retrenchments were rushed flowing from
the
commencement of the strike action on 14 May 2012. In this regard, it
was further argued that the fact that immediately after
the strike
action was ended on 16 July 2012, the decision to effect the
retrenchments on 31 July 2012 is an indication that the
Respondent
clearly intended to dismiss employees.
[33]
The chronology of events indicate that with effect from 16 May 2011,
the parties had been engaged in wage negotiations that
were extended
until February 2012 after a certificate of outcome was issued by the
CCMA. When further negotiations failed on 6
April 2012, the employees
had embarked on a protected strike action with effect from 14 May
2012. It was common cause that throughout
this period, the parties
had engaged each other with a view of resolving the wage dispute.
[34]
The Respondent had issued a notice of possible retrenchments on 2 May
2012, some 12 days prior to the strike action being embarked
upon.
Thus the retrenchment process started before the commencement of the
strike action, and was finalised after the strike came
to an end. An
issue that had caused the protracted negotiations and inability to
resolve the wage demands was the Respondent’s
financial
position which has already been dealt with elsewhere in this
judgment. On the sole issue of the Respondent’s financial

position, there can be no substance in the allegation that the
retrenchments were for any other reason.
[35]
A further factor that makes the Applicants’ allegations
improbable is that out of its total workforce of 202 employees,
101
had participated in the strike action, and only 33 were ultimately
retrenched. If there was indeed any intention on the part
of the
Respondent to punish those employees that had participated in the
strike action, such intention in my view would have been
reflected in
the number of those retrenched.
[36]
It therefore follows from the above that there is no merit in the
contention that the retrenchments were in retaliation of
the
employees’ participation in the strike action. It is accepted
that the process of wage negotiations with a view of ending
the
strike became intertwined with the retrenchment process when notices
were issued on 2 May 2012. Inasmuch as it was important
for the
employees and the union to find a solution to the wage demands, it
was equally important for the Respondent to take measures
to ensure
its survival. Given its financial position as at the end of the
strike action, the Respondent was within its rights to
proceed with
the finalisation of the retrenchment process, and the mere fact that
the two processes coincided does not imply
mala fides
on the
part of the Respondent.
[37]
In conclusion, I am satisfied that the Respondent established a
general need to retrench, and that there were no viable alternatives

to retrenchment of the individual Applicants. I have further had
regard to the issue of costs, and it is my view that considerations

of law and fairness militate against such an order. Accordingly, the
following order is made;
Order:
i.
The
dismissal of the individual applicants on the grounds of the
Respondent’s operational requirements was substantively fair.
ii.
There
is no order as to costs.
__________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Mr. N Lekala of SACCAWU
On
behalf of the Respondent:
Adv. C Prinsloo
Instructed
by:

Nel van der Merwe Smalman Attorneys
[1]
Page 145 of the trial bundle
[2]
Page 35 of the trial bundle
[3]
At page 41 of the trial bundle
[4]
Act 108 of 1996
[5]
Act 66 of 1995 as amended
[6]
(2013) 34 ILJ 108 (LAC) at para 27
[7]
2015 (4) SA 247
(LAC) at paras 19-20
[8]
(2000) 21 ILJ 129 (LAC) at para 18(h)-(i)
[9]
Forecourt Express (Pty) Ltd. v SA Transport &
Allied Workers Union & Another
(2006) 27 ILJ 2537 (LAC)
[10]
Page 145 of the trial bundle
[11]
187 Automatically unfair dismissals
(1)
A dismissal is automatically unfair if the
employer, in dismissing the employee, acts contrary to section 5 or,
if the reason
for the dismissal is-
(a)
That the
employee
participated in or supported, or indicated an intention to
participate in or support, a
strike or
protest action
that complies with the
provisions of Chapter IV
[12]
See paras 4.3 and 19 of the minutes