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[2017] ZALCJHB 152
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National Union of Metalworkers of South Africa (NUMSA) obo Labase and Others v WE Geysers (JS162/16) [2017] ZALCJHB 152 (8 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Case
No: JS162/16
In
the matter between:
NATIONAL UNION OF
METALWORKERS
First Applicant
OF
SOUTH AFRICA (NUMSA)
obo
JAN
LABASE AND 7 OTHERS
Second to Further Applicants
and
W
E GEYSERS
Respondent
Heard:
23 February 2017
Judgment:
8 May 2017
Summary:
Unfair dismissal action, applicants alleging that they were
dismissed in terms of section 186(1)(d) of the LRA. Applicants
failing to establish either that the respondent offered to re-employ
a previously dismissed employee or that they tendered their
services.
Action dismissed with costs.
JUDGMENT
BARNES
AJ
[1]
This
is an unfair dismissal action. The applicants contend that they were
dismissed by the respondent on the basis of selective
non
re-employment in terms of section 186(1)(d) of the Labour Relations
Act
[1]
(the LRA) and that
such dismissals were unfair.
[2]
The trial commenced and
was concluded on 23 February 2017.
[3]
One of the issues in
dispute in the trial was the extent of respondent employer’s
obligations in terms of the MEIBC Main Agreement
to re-hire
retrenched employees. Evidence was led on this issue.
[4]
On 28 February 2017,
the respondent’s attorney, Clifford Levin addressed a letter to
myself which read as follows:
“
We
have consulted with our client as well as the relevant employer’s
organisation and the applicable bargaining council and
have
determined that the issue relating to the exact content of the
Consolidated Main Agreement has not been fully ventilated in
terms of
its relevance pertaining to this matter.
In
respect thereof, we have made various enquiries into the correctness
of the published version as it was not the position at the
time of
the retrenchment of the employees and therefore any changes that were
made to the Consolidated Main Agreement may not be
relevant for the
Honourable Court’s determination.
We
have requested consent from the Applicant parties’ legal
representatives, to which same have responded to state that they
reserve their right to oppose same.
Accordingly,
our offices humbly request that our offices be allowed to submit
supplementary heads of argument by the close of business
on 2 March
2017, or on such date as determined by the Court.”
[5]
On 1 March 2017,
correspondence was received from the applicants’ attorney in
which they objected to the aforesaid request.
[6]
On 2 March 2017, I
issued the following directive:
“
1.
The correspondence received in
relation to this matter refers.
2.
The trial in respect of this matter
was concluded on 23 February 2017.
3.
The issue raised by the respondent in
the letter from its attorneys, Clifford Levin Attorneys,
dated 28
February 2017 is a factual one.
4.
Accordingly, if the respondent is of the view that it is necessary to
ventilate this issue,
it is required to bring an application to
re-open its case.
5.
If the respondent intends to bring such an application, it is
required to do so within 5
(five) court days of the date of this
directive, failing which the court will proceed to deliver judgment
in this matter."
[7]
On 7 March 2017, the
respondent launched an interlocutory application not for leave to
re-open its case as directed but for leave
to file supplementary
heads of argument. The applicants oppose the application.
[8]
The respondent’s
application does not comply with my directive and stands to be
dismissed for this reason alone.
[9]
Turning to the merits
of the action, the applicants contend that they were dismissed in
terms of section 186(1)(d) of the LRA which
provides for a form of
statutory dismissal where “
an
employer who dismissed a number of employees for the same or similar
reasons has offered to re-employ one or more of them but
has refused
to re-employ another.”
[10]
This form of dismissal
is possible only when it has been preceded by a ‘conventional’
dismissal and the employees concerned
were dismissed in similar
circumstances.
[11]
Selective
re-employment constitutes a dismissal only when one or more of the
formerly dismissed employees have been offered re-employment,
and
when others have been refused re-employment. It is the
refusal
of the employer to re-employ dismissed employees that triggers this
form of dismissal. It follows that before former employees
can be
dismissed in this way, they must have tendered their services.
[2]
[12]
It was common cause
that the applicants were retrenched by the respondent with effect
from 30 November 2014.
[13]
In order to establish
that they were subsequently dismissed by the respondent in terms of
section 186(1)(d) of the LRA, the applicants
bore the onus to
establish two critical facts:
13.1
first, that the
respondent offered to re-employ or re-employed one or more employees
previously dismissed by it; and
13.2
second, that the
applicants tendered their services to the respondent and the
respondent refused to re-employ them.
[14]
In my view, the
applicants failed to establish either of these facts on the evidence.
[15]
The applicants were
able to point to only one person whom they contended had been
re-employed by the respondent, Mr Tshepo Chelechele.
However, the
evidence for the respondent was that Mr Chelechele had at all times
been placed with it by a labour broker, Ebutsi
Services Gauteng (Pty)
Ltd. The applicants were unable to dispute this and could therefore
not establish that Mr Chelechele had
been offered re-employment or
re-employed by the respondent.
[16]
The applicants
therefore failed to establish the first critical fact.
[17]
The applicants led the
evidence of only one witness, Ms Matsena, a legal officer of NUMSA.
Ms Matsena testified that she addressed
a letter to the respondent in
the following terms:
“
It
has come to our attention that WE Geyser has been employing new
candidates on permanent basis and others temporarily.
We
would like to refer you to Annexure A of the Main Agreement,
paragraph 2.6 which deals with the re-employment of retrenched
employees.
Paragraph
2.6.1 of the Main Agreement states ‘
if
an employer who has previously retrenched employees engages new
employees, that employer must as far as possible give preference
to
the engagement of those persons who were retrenched from the
establishment during the preceding 36 months and who are
qualified and available to undertake the categories of work required
by the employer.’
It
is clear from the above section that you are in breach of the main
agreement as you have employed new people within 36 months
and failed
to recall the old employees that were retrenched on 30 November
2014.”
[18]
This does not however
amount to a tender by the applicants of their services. Ms Matsena
confirmed under cross examination that
she did not advise the
respondent at any stage that the applicants were available to work
and that they tendered their services
to the respondent. On the
contrary, Ms Matsena stated that the purpose of her letter was simply
to inform the respondent that it
was in breach of the Main Agreement.
[19]
The applicant therefore
failed to establish the second critical fact in order to make out a
case in terms of section 186(1)(d).
[20]
There is in any event a
further reason why the action cannot succeed. It emerged during the
evidence that the respondent company
ceased trading in December 2016
and that there has been a transfer in terms of section 197 of the LRA
to a new entity by the name
of Duratherm Geysers (Pty) Ltd. Duratherm
is not a party to these proceedings. This means that the correct
employer is not before
Court and that any relief granted against the
respondent would be ineffective and, accordingly, incompetent.
[21]
For all these reasons,
the action must fail. I see no reason why costs should not follow the
result.
[22]
I therefore make the
following order:
Order
1.
The respondent’s
interlocutory application is dismissed with costs.
2.
The applicants’
action is dismissed with costs.
__________________________
Heidi
Barnes
Acting
Judge of the Labour Court
Appearances:
For
the Applicants : Advocate T Govender
instructed
by
: Ruth Edmonds Attorneys
For
the Respondent : Mr C Levin of Clifford Levin Attorneys
[1]
Act 66 of
1995
[2]
See Grogan
Workplace
Law
(Juta, 11
th
ed) at p 173 – 174.