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[2017] ZALCJHB 424
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National Union of Mineworkers of South Africa (NUMSA) obo Persons Listed in Annexure A and B v Glencore Operations South Africa (Pty) Ltd (Merafe Venture) (JS108/2014) [2017] ZALCJHB 424 (16 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JS 108/2014
In the matter between:
NATIONAL UNION OF MINEWORKERS
OF SOUTH AFRICA (NUMSA)
obo
First Applicant
PERSONS LISTED IN ANNEXURE “A”
AND
“
B”
Second to further Applicants
and
GLENCORE OPERATIONS SOUTH AFRICA
(PTY) LTD
(MERAFE
VENTURE)
Respondent
Heard:
1 and 2 August
2016, 12 – 15 December 2016
Delivered:
16 November 2017
Summary:
The Applicants claim that their dismissal was unfair when they were
retrenched subsequent to placing Horizon mine under
care and
maintenance. Alternative positions were available to avoid dismissal
but the Applicants adopted a stance that employees
would not be
redeployed. Dismissal was fair.
Applicants’
case is dismissed.
JUDGMENT
PRINSLOO. J
Introduction
[1]
The
individual Applicants (employees) were employed at the Respondent’s
Horizon Chrome mine (Horizon or the mine) before they
were dismissed
on 4 October 2013. The Applicants approached this Court for relief
claiming that they were unfairly dismissed for
reasons related to the
Respondent’s operational requirements. The Applicants seek an
order declaring that their dismissal
was substantively unfair and to
be awarded compensation.
[2]
In
their statement of case the Applicants cited the employees as the
individuals whose names were listed in annexure “A”
and
“B” and they seek the joinder of the employees listed in
annexure “B’ to be applicants in this matter.
[3]
Before
I deal with the pleadings, evidence or merits of the case, the first
issue to be decided is the application for joinder.
The joinder application
[4]
The
First Applicant (NUMSA) referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA)
on 30
October 2013, which dispute was conciliated and remained unresolved
on 4 December 2013. A certificate of outcome was issued
on the same
date and the dispute was referred to this Court.
[5]
The
Applicants seek to join the individual employees listed in annexure
“B” as they were excluded from the referral
to the CCMA.
The Applicants’ case is that they were employees of the
Respondent, they were dismissed, their dispute is the
same dispute
that was referred and conciliated on 4 December 2013 and they have a
direct and substantial interest in this matter
and their right to
relief depends on the determination of substantially the same
questions of law and the same facts.
[6]
The
application for joinder is opposed.
[7]
The
Respondent’s case is that this Court has no jurisdiction in
respect of the individual employees listed in annexure “B”
as their dispute was not referred for conciliation in terms of the
provisions of section 191(1) of the Labour Relations Act
[1]
(the Act) and therefore they cannot be joined as applicants.
[8]
In
Intervalve
(Pty) Limited and Others v National Union of Mineworkers of South
Africa
[2]
the Labour Appeal Court confirmed that conciliation was a
precondition before a dispute could be adjudicated in terms of the
provisions
of section 191 of the Act.
[9]
The
Constitutional Court also considered the issue of conciliation in
National
Union of Mineworkers of South Africa v Intervalve (Pty) Limited and
others
[3]
and
held that:
“
Section
191(5) stipulates one of two preconditions before the dispute can be
referred to the Labour Court for adjudication: there
must be a
certificate of non-resolution, or 30 days must have passed. If
neither condition is fulfilled, the statute provides no
avenue
through which the employee may bring the dispute to the Labour Court
for adjudication. As Zondo J shows in his judgment,
with which I
concur, this requirement has been deeply rooted in South African
labour law history for nearly a century. We should
not tamper with it
now”.
[10]
In my
view the position is clear: this Court has jurisdiction to adjudicate
a dispute where the jurisdictional pre-requisite of
conciliation has
been met. The dispute that was referred to the CCMA was referred in
respect of the individual applicants who were
listed in annexure “A”
and that is the dispute that was conciliated and for which a
certificate of outcome was issued.
[11]
No
dispute was referred in respect of the individual employees listed in
annexure “B”. It follows that the dispute between
the
individual employees listed in annexure “B” and the
Respondent was not conciliated and the precondition before
the
dispute could be referred to the Labour Court for adjudication has
not been fulfilled. The fact that they are also dismissed
employees
of the Respondent and that they have a direct and substantial
interest in this matter and their right to relief depends
on the
determination of substantially the same questions of law and the same
facts cannot rescue them and does not absolve them
from the
requirement that they had to refer their dispute for conciliation.
[12]
This
Court has no power to condone non-compliance with this jurisdictional
pre-condition. Absent conciliation there is no jurisdiction
[4]
.
The individual employees listed in annexure “B” cannot be
joined to these proceedings in the absence of the jurisdictional
pre-requisite of conciliation and the application for joinder has to
fail.
The pleadings and pre-trial minute
[13]
In
the pre-trial minute the parties agreed that the following facts and
timeline were common cause:
13.1
The Respondent is Glencore Operation South Africa (Pty) Ltd (Merafe
Venture), having changed its name from
Xtrata South Africa (Pty) Ltd.
Glencore International PLC acquired the issued share capital of
Xstrata PLC, which it did not already
own and consequent to this
acquisition and as result of the merger, the Competition Tribunal of
South Africa on 22 January 2013
issued an order.
13.2. On 18 February 2013,
the Respondent informed NUMSA and its Horizon employees that it
intended to sell Horizon
as a going concern in terms of section 197
of the Act to a successful bidder.
13.3. On 19 June 2013, the
Respondent gave a presentation at Horizon to the Future Forum and to
NUMSA. The Respondent
informed those present at the meeting that it
was left with no other option but to proceed with a consultation
process in terms
of section 189 and 189A of the Act. The Respondent
informed those present that it would submit documentation to the
Competition
Commission, which would substantiate that the process to
be undertaken by the Respondent in terms of section 189 and 189A of
the
Act at Horizon was not as a result of the Xstrata and Glencore
merger.
13.4. Following the
presentation to NUMSA, the Respondent addressed a memorandum to its
employees informing them that
it had not been successful in selling
Horizon. The Respondent also informed the employees that since the
attempted sale or disposal
of Horizon was not successful, the company
would proceed with a consultation process in terms of sections 189
and 189A of the Act.
13.5. The Respondent
issued a notice in terms of section 189(3) of the Act on 20 June
2013, which notice also informed
NUMSA that the Respondent would
request the appointment of a CCMA facilitator in terms of section
189A (3) of the Act.
13.6. The section 189(3)
notice invited NUMSA to submit written proposals to the Respondent
addressing the issues as
provided for in section 189(2) of the Act by
close of business on 28 June 2013. The Respondent requested NUMSA to
provide a date
or dates on which they could meet to begin the
consultation process.
13.7. On or about 20 June
2013, NUMSA referred a complaint to the Competition Commission to the
effect that the Respondent
proposed to retrench employees in
contravention of the Competition Commission’s merger
conditions.
13.8. On 21 June 2013,
Horizon was placed under care and maintenance.
13.9. On 02 July 2013, a
meeting was held between the Respondent and NUMSA’s regional
officials.
13.10.
On 10 July 2013, the Respondent applied for facilitation by the CCMA
in terms of section 189A of the Act. The CCMA informed
the parties
that the first facilitation meeting would take place on 18 July 2013
at the CCMA.
13.11. On 12 July 2013 the Respondent
and NUMSA’s senior leadership agreed to meet at the
Respondent’s Head Office in
an attempt to forge a way forward
with the process undertaken in terms of section 189 of the Act. The
parties agreed to meet at
the Respondent’s Waterval West mine
on 17 July 2013.
13.12.
The parties met on 17 July 2013 and at the meeting NUMSA requested
the Respondent to withdraw its request for facilitation
by the CCMA
and on 18 July 2013 the Respondent withdrew its request for
facilitation as requested by NUMSA.
13.13.
On 01 August 2013 a meeting was held between the Respondent and NUMSA
and the Respondent
inter
alia
informed
NUMSA that positions were available at its other operations in the
Western Mines.
13.14.
On 5 August 2013, the Respondent addressed a letter to NUMSA.
The letter informed NUMSA
inter
alia
that
the Respondent would be proceeding with the section 189 process and
invited NUMSA to engage in consultation in respect of the
issues
contained in the section 189 (3) notice.
13.15.
On 6 August 2013 the Respondent requested the CCMA to reschedule the
facilitation process in terms of section 189A of the
Act.
13.16 On 22 August 2013 a
facilitated consultation meeting in terms of section 189A took place
at the CCMA. The facilitating
commissioner recommended that the
parties convene another meeting at the mine for purposes of
consultation in terms of section
189 of the Act.
13.17.
On 30 August 2013 the Respondent invited its employees employed at
Horizon to apply for voluntary severance packages (VSP)
from 02 - 06
September 2013. The notice indicated that the applicants for VPS’s
would receive 4 weeks’ pay for the
first year of completed
service, an additional 3 weeks’ pay per completed year of
service from the second year to the sixth
year of service and from
the seventh year of completed service onwards an additional 2 weeks’
pay per year of completed service
plus 3 months’ notice pay.
13.18.
On 04 September 2013 the employees who had applied for the VSPs were
provided with individual calculations of the amounts
they would
receive. On 05 September 2013 the Respondent provided the said
employees with recalculated amounts which were less than
the initial
amounts provided.
13.19.
Subsequent to the Respondent’s announcement of application for
VPS on 30 August 2013, the parties agreed to meet on
6 September
2013. The meeting was held between, amongst others, NUMSA’s
regional secretary Jerry Morulane, local organiser,
Mere Boase and
the Respondent’s Arthee Naidoo and Richard Vermeulen. At the
meeting the following was,
inter
alia
,
discussed and it was agreed that:
1.
NUMSA would submit a
proposal on severance packages and early retirement to the Respondent
by close of business on 12 September 2013;
2.
NUMSA could convene a mass meeting with its members at Horizon to
consult with them;
3.
The Respondent would
extend the consultation process in terms of section 189A of the
Act
to 17 September 2013 and invited NUMSA to consult from 13 to 17
September 2013.
13.20.
On 6 September 2013 NUMSA also requested the Respondent to provide
information on the number of available vacancies at its
other
operations and the number of applications the Respondent received for
redeployment to these positions. In a letter dated
9 September 2013,
the Respondent informed NUMSA of the suitable positions available at
its Kroondal and UG 2 operations and the
number of applications the
Respondent received for redeployment to these positions. The
Respondent further confirmed that it would
consider NUMSA’s
proposals to be submitted to it by 12 September 2013 and the
extension of the consultation process in terms
of section 189A of the
Act to 17 September 2013.
13.21. NUMSA requested that the
Respondent provide it with its submissions to the Competition
Commission and the Respondent disclosed
its submissions on 01 October
2013 to NUMSA.
13.22.
On 25 September 2013 the Respondent invited NUMSA to engage in
consultations in terms of section 189 of the Act on 26 and
27
September 2013.
The parties met to consult in terms of
section 189 of the Act on 30 September 2013. The parties discussed,
inter alia
, the redeployment of Horizon employees and VSP’s.
13.23.
On 01 October 2013, the Respondent addressed a letter to NUMSA
recording the following:
1.
The bidding process for the sale
of Horizon had been unsuccessful;
2.
It intended to finalise the section 189 retrenchment process by no
later than
4 October 2013 (3 days later);
3.
Horizon employees had until Thursday, 3 October 2013 (2 days later)
to apply for vacancies
previously advertised and presented to them
and to be considered for re-deployment;
4.
Applications for VSPs on the same basis as previously offered by the
Respondent would be
re-opened and would close on 3 October 2013 ( 2
days later);
5.
The forced retrenchment severance package would be 2 weeks’ pay
for each completed
year of service (calculated on basic salary and
housing), 1 months’ notice pay (to include basic salary,
housing, cash value
of medical aid and provident fund for the notice
period of 1 month) and a skills allowance of R2000.00 (paid directly
to the service
provider); and
6.
Should any Horizon employee not apply to be considered for
re-deployment or accept the VSP
by 3 October 2013 (2 days later) they
would be given notice of termination of their employment on 4 October
2013 and they would
receive forced severance packages.
13.24.
Ms Ruth Edmonds (Edmonds), the Applicant’s attorney of record,
contacted Mr Richard Ward (Ward) of the Respondent prior
to the
individual Applicants’ dismissals on 04 October 2013. At that
stage, Mr Ward agreed to discuss the section 189 process
undertaken
by the Respondent and the reasons for the closure of Horizon with
NUMSA.
13.25.
On 04 October 2013 the Respondent issued notices of termination to
the individual Applicants, who had not taken the VSP or
had not been
redeployed and advised them that they would be paid the forced
severance packages as detailed in the letter dated
1 October 2013.
13.26.
NUMSA, on behalf of the individual Applicants referred to in annexure
A, referred an unfair dismissal dispute to the CCMA
on 30 October
2013 and it was conciliated unsuccessfully on 04 December 2013.
Issues
for the Court to decide
[14]
As
the employees were retrenched in terms of a section 189A process,
this Court cannot decide the procedural fairness of their dismissal,
as stipulated in section 189A (13) and (18) of the Act. Section
189A assumes a firm separation between substantive and procedural
fairness as it provides for a discrete procedure in respect of
procedural lapses where procedural irregularities should be remedied
urgently and not once the process has run its course.
[15]
The
only aspect that could be decided is the substantive fairness of the
Applicant’s dismissal.
The evidence adduced
[16]
The
Respondent called one witness, Mr Richard Francois Vermeulen
(Vermeulen) who testified that he is employed as the Respondent’s
general manager for the Western mines.
[17]
Vermeulen
testified that in February 2013 NUMSA and the Horizon mine employees
were informed that the Respondent intended to dispose
of Horizon and
that the Respondent was in the process of selling the mine to a
successful bidder.
[18]
The
reasons why the Respondent wanted to dispose of Horizon were
inter
alia
that
the demand for chrome reduced globally and that Horizon was a high
cost operation. On 19 and 25 February 2013 a meeting was
held with
the Future Forum members and shop stewards and the purpose of the
meeting was to inform them that the Horizon operation
was no longer
viable and that the Respondent was looking for a buyer to take over
Horizon as a going concern. At the end of the
meeting held on 25
February 2013 six issues were agreed to,
inter
alia
that
the next meeting would be convened once the new owner had been
identified.
[19]
Vermeulen
explained that the process to look for a buyer for Horizon lasted
almost four months and by June 2013 the Respondent realised
that it
was unable to sell Horizon and it had no option but to embark on a
section 189 process. On 18 June 2013 the Respondent
gave a
presentation to the employees to inform them that the Respondent was
unable to find a buyer for Horizon and to give them
feedback.
[20]
Vermeulen
testified that during the presentation employees and NUMSA were
informed that Horizon had been and continued to make extensive
losses. The financial position of Horizon in June 2013 was dire as it
made a loss, no matter what the Respondent did as at the
time they
had more product than what the demand was.
[21]
Vermeulen
also explained that the geology of Horizon was another relevant
factor that was discussed. At Horizon the mining methodology
was
conventional and labour intensive opposed to other mines where mining
was mechanised and less expensive. The cost implication
to mechanise
mining at Horizon rendered it an uneconomical option.
[22]
In
2012 Horizon made a loss of R 250 million and in 2013 the loss was R
150 million. The Respondent considered alternative solutions
to save
Horizon but it was evident that it could not be saved. The Respondent
considered the possible expansion of the mine, which
was implemented
but this was not viable as there was a surplus of ore with a lowered
demand globally and notwithstanding the expansion,
Horizon still made
losses as the chrome ore market was depressed. The Respondent also
considered a system to change from the conventional
to mechanical
mining, but this proved to be too expensive. The Respondent further
attempted to find a buyer who could take over
the mine as a going
concern, but that also failed. Vermeulen testified that Horizon was
value destroying and even if the market
price increased with 40%, it
would leave the mine in nothing better than a break even position.
[23]
The
employees and NUMSA were advised that the Respondent would proceed
with a consultation process in terms of section 189 and 189A
of the
Act. The Respondent also advised them that it would be attending to
the activities required in terms of the Mineral and
Petroleum
Resources Development Act
[5]
(MPRDA) in order to place the mine under care and maintenance. The
Respondent indicated that while the mine is placed under care
and
maintenance, it would still attempt to sell Horizon. The Respondent
also indicated that it would prepare documentation to be
submitted to
the Competition Commission to the effect that the process is not due
to the Glencore merger.
[24]
On 19
June 2013 the Respondent issued a letter to the employees providing
feedback on the presentation that was done and in summary
it
communicated to the employees that the mine was making losses and
that it was a high cost mine. The letter also sets out the
process
which the Respondent followed up to that stage and that the
Respondent would commence with a section 189 process.
[25]
On 20
June 2013 a letter was issued to the NUMSA local organiser, Mr Mere
Boase (Boase) and others giving notice that the Respondent
would
commence with a section 189 process as Horizon reached the point
where it was no longer financially viable to operate under
the
current circumstances. It was evident that from 2004 until 2013 the
mine made a loss and the Respondent was unable to carry
the loss any
longer. NUMSA was invited to make representations and to submit
written proposals by 28 June 2013 and to provide a
date to convene a
meeting to start the consultation process.
[26]
The
Respondent received no response from NUMSA and proceeded with the
section 189 process and meetings were held on 2, 12 and 17
July 2013.
[27]
On 26
July 2013 the Respondent issued a letter to all Horizon employees
wherein feedback was given regarding the placement of the
mine under
care and maintenance. Vermeulen explained that ‘care and
maintenance’ means that when operations at a mine
cease, the
mine cannot simply be switched off as it has to stay safe in respect
of its duties under the Mine Health and Safety
Act and it must remain
ready to operate. Horizon was placed under care and maintenance and
was no longer producing and due to safety
reasons employees were
withdrawn from underground on 18 July 2013. With effect from 1 August
2013 employees, except those performing
essential services, were
rostered for day shift from 06:00 – 14:30 and they were paid
accordingly. Terms and conditions of
employment remained unchanged.
[28]
On 30
July 2013 a letter was addressed to NUMSA’s regional secretary,
Mr Jerry Morulane (Morulane), Mr Stephen Nhlapo (Nhlapo)
and Boase.
The letter referred to a prior meeting and correspondence and
indicated that there was an urgent need to commence with
discussions
on the re-deployment of Horizon employees into existing vacancies in
the company. There were various vacancies available
at the Lion
Smelter, Eastern Limb in the Steelpoort area and Western Chrome Mines
that needed to be filled as a matter of urgency.
NUMSA was invited to
consult about the redeployment of employees on 1 August 2013 or to
suggest an alternate date. Vermeulen testified
that the Respondent
wanted to afford the Horizon employees an opportunity to be
redeployed and to remain employed. At the time
there were between 130
and 140 employees at Horizon and Vermeulen testified that there were
sufficient vacancies to accommodate
all the Horizon employees and it
was the Respondent’s intention that not one of the employees
should lose their jobs.
[29]
Vermeulen
testified that since the meeting held on 17 July 2013 and on 1 August
2013 Boase adopted an attitude that no-one would
be redeployed, he
was uncooperative to find alternative placement for the Horizon
employees and insisted that redeployment would
not happen. Vermeulen
testified that NUMSA was consulted about redeployment and it was
evident that Boase was against it from the
onset.
[30]
Vermeulen
testified that at no point did NUMSA or Boase make any proposals to
keep Horizon operational or were any alternatives
put forward, but
instead Boase insisted that meetings take place with the Department
of Mineral Resources, the Competition Commission
and other State
Departments, which was not a requirement the Respondent had to comply
with and this was only done to prolong and
frustrate the process.
Vermeulen made it clear that Horizon could no longer operate, but the
Respondent’s intention was to
keep the employees employed in
alternative positions.
[31]
Vermeulen
explained that in May 2013 a merger took place between Glencore and
Xstrata, which merger was approved by the Competition
Tribunal. The
Competition Tribunal specified conditions for the merger. According
to the Respondent the said conditions did not
apply to the section
189 process at Horizon, but NUMSA was of the view that it applied to
the said process.
[32]
On 5
August 2013 the Respondent addressed a letter to NUMSA’s Boase,
Morulane and Nhlapo wherein the history of the process
and the
engagement between the Respondent and NUMSA had been outlined. The
Respondent made it clear that the downscaling of the
operations at
Horizon was not due to the Glencore merger, but indicated that the
merger document stated that retrenchments do not
include voluntary
separation agreements, voluntary early retirement packages or refusal
to be redeployed. This was in clarification
of NUMSA’s attitude
that the Competition Commission should be involved and that Horizon
employees would not be redeployed.
The Respondent made it clear that
it would be proceeding with the section 189 process and once again
invited NUMSA to engage in
consultation.
[33]
On 23
October 2013 the Competition Commission issued a letter wherein the
complaint lodged by NUMSA regarding the breach of the
merger
conditions in respect of Glencore and Xstrata was addressed. The
Competition Commission indicated that it has conducted
an
investigation into the complaint it received from NUMSA and concluded
that the section 189A process at Horizon was not in breach
of the
merger approval conditions.
[34]
On 19
August 2013 the Respondent addressed a letter to all Horizon
employees and Boase informing them that the Respondent would
be
proceeding with the section 189 process as the meetings with NUMSA
proved fruitless and that the CCMA has been requested to
continue
with the facilitation process as provided for in section 189A(3) of
the Act. The facilitation meeting was scheduled for
22 August 2013
and they were invited to engage in the consultation process.
[35]
The
facilitation process at the CCMA indeed took place on 22 August 2013
and was attended by the Respondent’s management and
a number of
NUMSA shop stewards and Boase. It is evident from the transcript of
the meeting held on 22 August 2013 that Boase was
opposed to the CCMA
facilitation process and he made it clear that the matter should
rather be dealt with by the Competition Commission
as it was a term
of the merger that the Respondent would not retrench employees within
two years of the merger. The Respondent’s
Mr Perry then
explained that they tried to make Horizon profitable since 2008 and
the Respondent could not continue with the operations
any longer and
he made it clear that the section 189 process was not a result of the
merger and that it is not in breach of the
merger conditions.
[36]
Vermeulen
testified that NUMSA’s attitude to the process was destructive
and intended to delay the process. NUMSA never challenged
the need to
retrench but rather harper on the Competition Commission. On 22
August 2013 the Respondent made it clear that nothing
could be done
to save Horizon but the Respondent could accommodate the employees
and NUMSA needed to get to the table to accommodate
the Horizon
employees. Vermeulen testified that on 22 August 2013 it was possible
to accommodate all the Horizon employees through
a process of
redeployment and that redeployment would have been on the same terms
and conditions. The outcome of the meeting was
that the parties
agreed that NUMSA would communicate a date for a meeting with the
Respondent by 23 August 2013 and that the parties
would have a
meeting within 15 days to take the process further. It was placed on
record that the Respondent had difficulty to
arrange a meeting with
NUMSA as it was impossible to arrange a date with NUMSA as NUMSA was
never available to meet.
[37]
NUMSA
failed to provide a date for the meeting, as per the agreement of 22
August 2013, and on 26 August 2013 the Respondent addressed
a letter
to Boase and the CCMA stating that the Respondent made attempts to
obtain a meeting date from NUMSA but without success
and that it
would be proceeding with the redeployment of employees into existing
vacancies and voluntary severance offers. Vermeulen
testified that
the Respondent offered VSP’s as some employees indicated that
they would be interested to accept a VSP.
[38]
On 30
August 2013 the Respondent issued a letter to all Horizon employees,
the Future Forum members and shop stewards indicating
the details of
the VSP’s the Respondent offered. The severance pay offered was
four weeks’ pay for the first year of
completed service, three
weeks’ for year 2 – 6 completed service, two weeks’
pay for seven years and more completed
service and 3 months’
notice pay.
[39]
Vermeulen
explained that the section 189A process commenced on 20 June 2013 and
the 60-day period for consultation expired on 19
August 2013.
No input or response had been received from Boase or NUMSA and on 4
September 2013 the Respondent issued VSP
calculations to employees.
However, a calculation error was made in the calculation of the
individual packages, which error was
corrected on 5 September 2013.
The error related
inter
alia
to
the calculation of the employee’s 13
th
cheque in that it was multiplied by the years of service.
[40]
The
next meeting with NUMSA was held on 6 September 2013 and the minutes
of the meeting reflected
inter
alia
that
NUMSA undertook to submit proposals to the Respondent by close of
business on 12 September 2013, that NUMSA requested information
on
the number of vacancies and the number of applicants and requested
that the VSP process be stopped and noted that the Competition
Commission issue had not been resolved.
[41]
The
minutes further showed that the Respondent
inter
alia
encouraged
NUMSA to forward proposals by 12 September 2013, that it would submit
information on the number of vacancies and applications
and that the
VSP process would not be stopped but that the closing date for
applications be extended from 6 September 2013 to 13
September 2013.
[42]
Vermeulen
testified that the Horizon employees were still paid their salaries
since the mine was placed under care and maintenance
in June 2013.
[43]
In a
letter dated 9 September 2013, the Respondent provided NUMSA with the
requested information and indicated that at Kroondal
there were 65
positions advertised and 9 applications received and at UG 2 there
were 11 positions with 9 applications received.
It was reiterated
that the Respondent would consider proposals made by NUMSA and that
such should be forwarded by 12 September
2013. The Respondent further
stated that it agreed to extend the consultation period beyond the
60-day period that ended on 20
August 2013 to 17 September 2013 and
invited NUMSA to consult from 13 – 17 September 2013 and the
closing date for VSP applications
was extended to 13 September 2013.
[44]
NUMSA
did not make any proposals by 12 September 2013 and the consultation
meetings as proposed by the Respondent did not take place.
[45]
On 16
September 2013 Morulane addressed an electronic mail to the
Respondent wherein certain issues between the parties were placed
on
record. No proposals were made by NUMSA.
[46]
On 17
September 2013 Boase forwarded NUMSA’s proposals in respect of
VSP’s and early retirement. NUMSA proposed 4 weeks’
severance pay for employees with 0 – 12 months’ service,
from one year service onwards NUMSA proposed 4 weeks’
severance
pay per year worked, 4 months’ notice pay, a bonus incentive of
R 2000, long service pay, shares, housing, full
payment of a 13
th
cheques, 4 months’ medical aid contribution, educational
assistance, provident fund and UIF.
[47]
Vermeulen
testified that the difficulty with this was that NUMSA had to make
proposals by 12 September 2013 and the closing date
for VSP
applications was 13 September 2013. Proposals made on 17 September
2013 were of no assistance to any of the parties and
it left the
Horizon employees in a position where they were unable to apply for
VSP’s.
[48]
On 17
September 2013 the Respondent replied to NUMSA and stated that the
VSP the Respondent offered was very generous and reasonable
and that
the closing date was 13 September 2013. The Respondent communicated
its offer going forward as 2 weeks’ severance
pay for each
completed year of service, one month’s notice pay, skills
allowance of R 2000 to be paid to a service provider,
pro rata 13
th
cheque, medical aid benefits up to date of termination and assistance
with UIF applications. The Respondent once again offered
redeployment
to employees into existing vacancies with no change to terms and
conditions of employment.
[49]
NUMSA
did not respond to this letter and another letter was addressed to
Morulane, Boase, shop stewards and Horizon employees on
25 September
2013. In this letter the Responded recorded that NUMSA has not
responded to the letter of 17 September 2013 and has
not attempted to
engage in any further consultation. The Respondent once again
extended an invitation to NUMSA to engage in consultation
and
reserved 26 and 27 September 2013 for purposes of consultation. The
Respondent once again offered redeployment to employees
with no
change in their terms and conditions of employment.
[50]
The
Respondent made it clear that should NUMSA not accept the offer of
further consultation, it intended to issue employees with
notification of termination of service by 30 September 2013 as the
process was far beyond the 60-day period, in fact it was over
90 days
since the process commenced.
[51]
NUMSA
did not respond to this letter and no consultation meeting took place
on 26 or 27 September 2013.
[52]
On 30
September 2013 a meeting was held between the Respondent and NUMSA.
Vermeulen testified with reference to the transcript of
the meeting
that NUMSA tried to delay the process further as they wanted to go
back to the same old issues with no interest to
consult on the
relevant issues, for instance the Competition Commission issue was
laboured again and NUMSA indicating that they
would refer a dispute
to the CCMA regarding the disclosure of information.
[53]
In
respect of redeployment Morulane requested information and Vermeulen
testified that Morulane approached the issue of redeployment
as if it
was a new process that only started on 30 September 2013, whereas it
was proposed as far back as July 2013. In the meeting
Morulane made
it clear that there was no buy-in from the NUMSA leadership into the
proposed redeployment of employees and that
culminated into the
reality that the NUMSA members were also not interested in
redeployment as the member employees believe and
rely on the
information NUMSA shares with them. Morulane said that at this point
it might be wise to get the information and communicate
it with
members to make sure that those who qualify for positions and are
interested apply so that they could be redeployed. The
Respondent
requested timeframes as it was under pressure from the mines where
the vacancies existed as those mines were told not
to fill the
vacancies until the Horizon employees were afforded the opportunity
of redeployment to those vacancies. Vermeulen testified
that
redeployment was a positive proposal made by the Respondent to avoid
dismissal and as at 30 September 2013 the option of redeployment
was
open for almost 100 days.
[54]
Morulane
responded to the Respondent’s request for time frames in a very
vague manner and stated that he was unable to be
specific and that it
would be ‘either this week or latest next week’. This
concerned Vermeulen as NUMSA previously
agreed to timeframes which
they did not keep and constantly tried to delay the process. The
Respondent’s Ms Naidoo emphasized
that it would be worth it for
the Horizon employees to look at the available vacancies as all the
vacancies could be filled by
Horizon employees.
[55]
The
Respondent did not issue notices of termination on 30 September 2013,
as was indicated in the letter of 17 September 2013, but
instead met
with NUMSA. The meeting ended with an undertaking that NUMSA would
speak to their members and the Respondent would
revert to NUMSA on
the issue of severance pay / VSP and vacancies and the deadline was
set at ‘next week Wednesday.’
[56]
After
the meeting with NUMSA, Vermeulen reported back to the task team and
the task team was of the view that the process was prolonged
as it
was ongoing for almost 100 days and the history showed that NUMSA was
not committed to and adhering to dates and was delaying
the process.
Vermeulen was given a mandate to tell NUMSA that the process could
not carry on indefinitely and that the process
would be concluded by
4 October 2013, where after the employees would be retrenched.
Vermeulen explained that the process was ongoing
since June 2013 and
on 30 September 2013 NUMSA indicated for the first time an intention
to consult, resulting in another delay
and further timeframes,
whereas at that stage the process was at its end.
[57]
On 1
October 2013 the Respondent addressed a letter to Morulane, Boase,
the shop stewards and Horizon employees wherein the Respondent
provided feedback in respect of the meeting of 30 September 2013. The
Respondent informed them that the section 189 process commenced
on 20
June 2013, that it was well beyond the 60-day period and exceeded 100
days and that NUMSA had been afforded every opportunity
to engage
with the Respondent. The Respondent recorded that Horizon was not in
operation, yet the Respondent paid the employees’
salaries
without receiving any returns which resulted in huge additional costs
for the Respondent. The Respondent could not prolong
the process any
longer and it had to be finalised by 4 October 2013. The Respondent
attached a list of available vacancies and
requested NUMSA to
communicate with its members as a matter of urgency. The vacancies
were offered to the Horizon employees again
and they had to apply for
those by 3 October 2013 if they wanted to be considered for
redeployment.
[58]
The
Respondent further opened the VSP process again with the same offer
as previously made with closing date for applications being
3 October
2013. The Respondent made it clear that should employees not take up
the opportunity to be redeployed or to apply for
a VSP by 3 October
2013, notices of termination of service would be issued on 4 October
2013.
[59]
Vermeulen
testified that he spoke to Morulane telephonically and informed him
that the process was ending on 4 October 2013 and
that the letter
would set out the details of the offers made by the Respondent.
Morulane indicated that there was nothing else
to be done and NUMSA
did not respond to the letter of 1 October 2013.
[60]
Vermeulen
testified that the VSP process that was closed on 13 September 2013
was opened again with closing date being 3 October
2013. The
Respondent received only one application for VSP after the process
was opened again. In respect of redeployment, the
Respondent received
very few applications after it was opened until 3 October 2013.
[61]
On 4
October 2013 the Respondent issued notices of termination of
employment to the Horizon employees who did not apply for a VSP
or
redeployment. Morulane and Boase were notified of the
termination of services. NUMSA did not respond to the termination
of
services of the Horizon employees.
[62]
It is
common cause that subsequent to the termination of services, NUMSA’s
attorney of record, Ms Ruth Edmonds, contacted
the Respondent’s
legal representative and attempted to resolve the issues. On 11
October 2013 the Respondent addressed a
letter to Ms Edmonds
recording that it agreed to re-open the application process in
respect of redeployment and that the affected
individuals could apply
for redeployment into available vacant positions by close of business
on 14 October 2013. It was further
recorded that should a minimum of
60 of the alternative positions be filled by affected Horizon
employees, those employees who
have been granted a forced
retrenchment package would be compensated an additional 20% of the
total forced retrenchment package
amount. The Respondent also sought
confirmation that NUMSA would not institute any legal action relating
to the retrenchment of
employees.
[63]
No
written response was received from NUMSA, but a subsequent meeting
was held with Ms Edmonds.
[64]
On 14
October 2013 the Respondent communicated with the retrenched
employees via sms to apply for redeployment and the employees
were
informed that they had until 15 October 2013 to apply for
redeployment. More sms communication was sent to the employees
between 15 and 18 October 2013 to advise them of vacancies they could
apply for to be considered for redeployment. Vermeulen testified
that
all the employees had to do was to apply for the positions so that
the Respondent was able to know who was interested in redeployment.
He testified that notwithstanding the invitations sent to employees
there were almost no applications for redeployment. Vermeulen
confirmed that every employee that applied for redeployment, was
absorbed and remained employed.
[65]
Vermeulen
testified that there was an agreement reached that NUMSA would not
institute any legal action. This goes to the Respondent’s
point
in
limine
that
the dispute between the parties has been settled by compromise and
that there was a full and final settlement of the unfair
dismissal
dispute and therefore the Applicants are not entitled to bring their
unfair dismissal dispute before Court.
[66]
There
was no evidence placed before me to show that there was a binding
agreement in terms of which the dispute between the parties
was
settled by agreement and that the right to proceed with litigation
was waived.
[67]
There
is no merit in this point and the point
in
limine
in
respect of compromise is dismissed.
[68]
In
cross-examination propositions were put to Vermeulen to the extent
that the available vacant positions were not suitable for
the job
categories or levels of the Horizon employees and that they could not
be accommodated at other mines in the positions they
occupied.
Vermeulen was also questioned as to why the VSP’s were not
offered to employees at all the Respondent’s mines.
Vermeulen
responded that every mine is seen as a separate business unit and
Horizon was the mine that could no longer operate.
Vacancies were
however considered and offered at all the mines. Vermeulen further
responded that if NUMSA was of the view that
the VSP’s should
be offered in all the Respondent’s mines. It should have been
raised as a proposal but was never raised.
[69]
In my
view these questions did not assist the Applicants’ case for a
number of reasons. Firstly, it was not the Applicants’
pleaded
case that they could not be accommodated in the vacancies identified
for redeployment and secondly the undisputed evidence
was that NUMSA
took the stance that no employee would be redeployed and there was at
no point any consultation on the suitability
of the available vacant
positions. This trial does not constitute consultation as required by
the Act and the court room is not
a consultation venue. It is not
open for the Applicants to put propositions and proposals forward to
the Respondent on issues they
should have consulted on and which they
were invited to consult on but failed to do so. If the vacant
positions were not suitable
or if the VSP’s had to be offered
to all employees, it should have been raised and ventilated during
the prolonged consultation
process and it cannot be raised as an
afterthought and for the first time at trial.
[70]
The
need to retrench employees at Horizon mine was not seriously disputed
in cross-examination.
[71]
The
Applicants called two witnesses. The first witness was Ms Arthee
Naidoo (Naidoo), the Respondent’s labour relations manager.
In
2013 Naidoo was the Respondent’s human resources manager for
the Western Chrome mines, including Horizon. She assisted
Vermeulen
in the section 189 process in 2013 and her duties were to attend
meetings, prepare paperwork and actioning the decisions
of the task
team.
[72]
Naidoo
testified that when the section 189 notice was issued on 20 June 2013
it was evident that it was no longer viable for Horizon
to operate
under the current circumstances and the expectation was that NUMSA
would engage and enter into discussions to come up
with solutions to
keep Horizon operational. The purpose of the process was to explore
all options and NUMSA was specifically invited
to make proposals and
representations.
[73]
Naidoo
testified that the Respondent never believed that the employees would
lose their jobs due to the number of available vacancies
and the
possibility of accommodating the employees in those positions.
[74]
Naidoo
disputed the Applicants’ version that the decision to place
Horizon under care and maintenance and not to re-open the
mine denied
them the opportunity to consult about proposals to keep the mine
operational. Naidoo testified that NUMSA never participated
in the
process and made no proposals on how to keep Horizon operational or
any other relevant aspect.
[75]
Naidoo
further disputed the Applicants’ version that the Respondent’s
position about redeployment rendered discussions
on how to make
Horizon operational unnecessary. Naidoo testified that the Respondent
approached the CCMA twice to urge NUMSA to
participate in the process
and the Respondent believed that no employee would lose his or her
job as they could all be redeployed.
Naidoo testified that NUMSA was
stuck on the merger issue and held the view that the Respondent could
not retrench any employee
for a period of two years and this was the
main reason why NUMSA failed to participate in the process.
[76]
Naidoo
testified that every employee who applied for redeployment was
accommodated but NUMSA refused to engage in the process of
redeployment and those employees who did not apply for redeployment,
were eventually dismissed. Naidoo emphasized that retrenchment
could
have been avoided if the employees were prepared to be redeployed but
NUMSA took the stance that no employee would be redeployed.
After 30
September 2013 the Respondent opened the process of redeployment once
again and even after the employees were retrenched,
the process was
re-opened again until 18 October 2013 and those employees who
applied, were all redeployed and employed.
[77]
Boase
testified that he is employed by NUMSA as a local organiser in
Rustenburg, which included Horizon. Boase confirmed that he
received
the section 189 notice on 20 June 2013 and that the parties ended up
at the CCMA. NUMSA raised the issue about the merger
and the
Competition Commission and the fact that the Respondent could not
retrench any employees for a period of two years after
the merger.
[78]
Boase
testified that NUMSA made proposals and did raise issues in the
meetings that were held with the Respondent. Boase confirmed
that
NUMSA took the stance that there would be no redeployment of
employees and he provided reasons for that, which reasons were
not
communicated to the Respondent in any correspondence during the
retrenchment process and are not evident from the transcripts
of the
meetings. Boase conceded that positions were indeed available, but
testified that they were not suitable for the Horizon
employees.
[79]
In
cross-examination Boase testified that his understanding of a section
189 process is that parties should do their best to avoid
dismissals
and the primary objective is to save jobs. The process is for the
parties together to find solutions and save jobs.
[80]
Boase
conceded that he and NUMSA were of the view that the Respondent could
not retrench employees for a period of two years after
the merger
that took place on 1 May 2013 and when he received the section 189
invitation to consult, his view was that there can
be no retrenchment
at Horizon. He conceded that NUMSA’s reaction to the
retrenchment was that it could not happen as it was
a contravention
of the Competition Commission’s merger conditions.
[81]
Boase
conceded that during the period 20 June 2013 until 30 September 2013
NUMSA was opposed to the redeployment of employees and
NUMSA only
changed its mind on redeployment on 30 September 2013. It was put to
him that there is an obligation on the parties
to save jobs and that
was the intention of the Respondent to save jobs and it was able to
do so as all the Horizon employees could
have been redeployed in
other existing positions. Boase conceded that the employees who
applied for redeployment, were accommodated
and their jobs were
indeed saved.
[82]
In
his testimony Boase responded to many questions in a vague manner,
claiming that he could not recall or that he was unaware or
he
testified to a version that was not supported by any other evidence
such as letters or transcripts. In my observation Boase
had a
tendency to avoid answering questions and he was unable to answer
pertinent questions.
Closing arguments
[83]
Ms
Baloyi for the Applicants argued that the employees’ dismissal
was substantively unfair because when the Respondent advised
the
Applicants on 26 July 2013 that Horizon was placed under care and
maintenance, it eliminated consultation over the future of
the mine.
NUMSA was invited to engage and make representations on how to avoid
dismissals. Vermeulen said in August 2013 that Horizon
would not open
again.
[84]
Ms
Baloyi argued that the Respondent placed Horizon under care and
maintenance without consulting NUMSA and the reasons put forward
by
the Respondent in respect of Horizon indicated that there was no
scope for the parties to get together to discuss any improvement
at
Horizon. The Respondent’s position was that it did not want to
consult and engage on the improvement of Horizon, but it
wanted to
consult on measures to avoid dismissal.
[85]
Mr
Masher for the Respondent submitted that the provisions of section
189(2)(a)(i) are clear that the parties should consult on
measures to
avoid dismissal. He submitted that the Respondent tried for years to
make Horizon profitable but it was not possible.
NUMSA never disputed
the operational cost, the financial losses or Horizon’s
financial position. If that was disputed, NUMSA
should have said so
and should have asked for the financial statements, which was never
done.
[86]
Horizon
was bleeding and it was stopped by ceasing production and the
Respondent had to deal with the employees. NUMSA delayed the
consultation process and there was no progress on how to save jobs as
NUMSA’s view was that the Respondent could not retrench
in view
of the merger and NUMSA was hoping that the Competition Commission
would come to their rescue. NUMSA attended meetings
but acted in an
uncooperative manner playing for time and believing that the
Competition Commission would agree that the Respondent
could not
retrench employees.
[87]
NUMSA
provided no explanation as to why it was opposed to redeployment from
June to 30 September 2013 and why it changed its stance
only at the
end of September 2013.
[88]
A
section 189 process is ultimately about saving jobs and
in
casu
the
Respondent indicated that all the Horizon employees could be
accommodated in alternative positions on the same terms and
conditions
of employment. There was a proper attempt to save jobs and
everyone who applied for redeployment, was accommodated. The
Applicants
were not interested in redeployment and they cannot claim
relief form this Court.
Analysis of the issues this Court
has to decide:
Substantive fairness
[89]
I
have already dealt with the issues regarding joinder and compromise
and the remaining issue to be decided by this Court is whether
the
Applicants’ dismissal was substantively fair.
[90]
In
respect of the challenge to the substantive fairness, the Applicants’
case in the main is two-fold. There is a challenge
to the need to
retrench and the consultation process.
The need to retrench
[91]
The
Applicants’ case is that the Respondent has not shown that
their dismissal was for a substantively fair reason.
[92]
Ms
Baloyi submitted that it is not sufficient for this Court to merely
accept the justification of the Respondent and to defer to
the
Respondent, but this Court has to scrutinize the validity of the
reasons provided by the employer and examine the content of
the
reasons given by the employer. This is to be done by considering the
evidence that was placed before the Court.
[93]
The
evidence placed before me demonstrates that the Respondent’s
Horizon mine operated under difficult conditions caused
inter
alia,
by
the low levels of demand for chrome in the global market and
expensive conventional mining methods. This state of affairs is
borne
out by losses which ran into millions of Rands over a period of years
and the Respondent’s unsuccessful attempts to
make the mine
profitable and to turn it around.
[94]
In
summary the Respondent showed that Horizon operated at a loss, its
geology played a significant role in the expensive mining
process,
production was higher than demand and the global chrome market was
depressed. The Respondent attempted to save the mine
by adopting a
hybrid mining method and to look for a prospective buyer, but none of
these attempts were successful and Horizon
functioned as a value
destroying operation.
[95]
In
June 2013 the Respondent gave a presentation to its employees wherein
the position of the mine was explained and the section
189(3) notice
issued to employees indicated
inter
alia
that
Horizon made substantial financial losses from 2004. It is
significant that these issues were not disputed during the
consultation
process and notwithstanding the fact that the Applicants
dispute the need to retrench, the rationale for placing the mine
under
care and maintenance, the losses made, the state of the global
chrome market and the expensive running of the mine were not
seriously
challenged or disputed during the trial.
[96]
It is
not for this Court to second guess the commercial and business
efficacy of the Respondent’s decision to retrench, more
so
where the reason to retrench was not challenged during the
consultation process and was not seriously disputed in Court. What
this Court has to do is to decide whether the Respondent’s
decision to retrench was informed and is justified by a proper
and
valid commercial or business rationale
[6]
.
[97]
In
view of the evidence placed before me, I am satisfied that the
Applicants’ dismissals were operationally justifiable as
the
Respondent was able to show that there was a need to retrench at
Horizon on the basis of high operating costs and continued
and
prolonged financial losses, which I accept to be commercially
justifiable and based on the employer’s economic reasons
and
financial position.
The consultation process
[98]
Ms
Baloyi submitted that the Applicants’ case is that in making
the decision and in fact placing Horizon under care and maintenance
before consultation with the Applicants, the Respondent subverted the
consultation process to consider any means or proposals that
would
keep the mine in production and avert closure and this renders the
dismissal substantively unfair. She further submitted
that if the
Court finds that the decision and conduct of the Respondent to place
the mine under care and maintenance was with the
intention that it
would never be re-opened, the dismissal of the employees was
substantively unfair.
[99]
The
evidence shows that placing the mine under ‘care and
maintenance’ was done to cease operation but to preserve the
mine in a condition to start production at any stage. This is also
evident from the notice to the Minister of Mineral Resources
in terms
of section 52 of the MPRDA wherein the Respondent recorded that the
mine was placed under care and maintenance and that
operations ceased
temporarily and that the Respondent remained committed to recommence
mining operations once economic conditions
improve and the mine could
be operated profitably. It is evident that even though the Respondent
was of the view that the mine
could not be saved and had to be
closed, the intention was not to close the mine permanently. This is
also supported by the fact
that the Respondent did not abandon its
efforts to find a buyer for Horizon and the fact that the mine was
under care and maintenance
from June 2013 until it was subsequently
sold at the end of December 2015 and is now operational.
[100]
The
question, at the time the mine was placed under care and maintenance
and operations at Horizon stopped, was what the Respondent
had to do
with its Horizon employees. The Respondent embarked on a section 189
retrenchment process.
[101]
The
Applicants’ case is
inter
alia,
that
the Respondent did not make any proposals that it considered to
preserve the mine in production to NUMSA and did not inform
them that
it sought proposals to improve the economic situation of the mine so
that Horizon remained in production profitably.
The only information
the Respondent provided was that the mine was not profitable, that it
had been and continued to make extensive
losses and was the highest
cost mine in the group. Ms Baloyi further submitted that the
Respondent made the decision to close the
mine before it consulted
the Applicants when it placed the mine under care and maintenance and
in doing so the Respondent closed
its mind to being persuaded and to
finding alternatives that could result in the continued operation of
Horizon with the consequence
that employees were displaced from the
position they previously held for unknown and possibly inferior
positions.
[102]
The
only evidence before this Court in respect of alternative positions
was that the Respondent was able to accommodate all the
Horizon
employees in existing vacant positions and that the employees would
be redeployed on the same terms and conditions. The
Applicants did
not consult on this issue and any allegation that the positions were
unknown and possibly inferior is nothing but
speculation and not
supported by evidence.
[103]
In my
view the Applicants lost sight of the purpose of a section 189
process and the objective of consultation.
[104]
It is
evident from the provisions of section 189(2)(a) of the Act that the
employer and other consulting parties must consult and
engage in a
meaningful joint consensus seeking process to attempt to reach
consensus on appropriate measures to avoid dismissals,
to minimise
the number of dismissals, to change the timing and to mitigate the
adverse effect of the dismissals. NUMSA was invited
to consult on
these issues.
[105]
The
main objective of consultation before a final decision on
retrenchment is taken must be to avoid retrenchments altogether,
alternatively to reduce the number of retrenchments and to mitigate
the consequences
[7]
.
The objective is not to ensure that the mine remained
operational or that the
status
quo
be
maintained.
[106]
Boase
testified that his understanding of a section 189 process is that
parties should do their best to avoid dismissals and the
primary
objective is to save jobs. The process is for the parties together to
find solutions and save jobs. Boase’s understanding
is quite
correct, the way he applied his own understanding of the process is
however deplorable and lamentable.
[107]
It is
evident from the common cause facts I fully set out
supra,
that
a number of meetings took place between the parties and there can be
no doubt that the Respondent was willing and prepared
to meet with
NUMSA and to consult on the relevant and pertinent issues.
[108]
The
evidence adduced however shows that NUMSA was of the view that the
Respondent could not retrench employees for a period of two
years and
when the section 189 invitation to consult was issued, the attitude
was that there can be no retrenchment at Horizon
and NUMSA’s
reaction to the retrenchment was that it could not happen as it was a
contravention of the Competition Commission’s
merger
conditions. In my view this approach motivated NUMSA not to
participate in the consultation process.
[109]
The
evidence showed that NUMSA was informed about the problems Horizon
experienced in respect of its mining operations and when
the section
189 notice was issued in June 2013, NUMSA was not concerned about the
reasons provided for embarking on such process
and at no stage did
NUMSA request information from the Respondent on the reasons for the
retrenchments. At no point did NUMSA provide
any proposals on how to
keep Horizon operational or how to avoid or minimise dismissals.
NUMSA suggested no alternatives and it
is evident that NUMSA was
stuck on its view that the Respondent was unable to retrench any
employee for two years and any attempt
to do so, would be in
contravention of the Competition Commission’s merger
conditions.
[110]
The
true reason for NUMSA’s failure to engage with the Respondent
in a meaningful joint consensus seeking process was due
to its belief
that the Respondent was precluded from retrenching employees in terms
of the Competition Commission merger conditions.
[111]
The
evidence further shows that the Respondent gave proper consideration
to alternatives to dismissal and that it offered redeployment
as an
alternative to retrenchment.
[112]
Boase
conceded that during the period 20 June 2013 until 30 September 2013
NUMSA was opposed to the redeployment of employees and
NUMSA only
changed its mind on redeployment on 30 September 2013.
[113]
The
undisputed evidence was that there were sufficient vacancies
available at the Respondent’s other operations for all the
Horizon employees to be redeployed and the employees who applied for
redeployment, were accommodated on the same terms and conditions
and
their jobs were indeed saved. This is compliant with the primary
purpose of a section 189 process namely to save jobs and to
avoid
dismissals.
[114]
NUMSA
was invited to engage in a section 189 process and to make
representations. NUMSA had a duty to engage and participate in
the
section 189 process and the Respondent made all reasonable attempts
to engage the Applicants in consultation, but NUMSA failed
to do so.
Only on 30 September 2013, more than 100 days after the section 189
notice was issued and at the 11
th
hour, NUMSA changed its position on the possibility of redeployment.
Notwithstanding the intervention of Ms Edmonds on behalf of
the
Applicants and the Respondent’s willingness to open the option
of redeployment after 4 October 2013, when the retrenchment
process
was concluded, the employees did not apply for redeployment. The few
who did, were redeployed.
[115]
NUMSA
did not engage in a meaningful joint consensus seeking process,
despite the fact that it was invited to do so over the period
June –
September 2013. NUMSA and more particularly Boase acted in an
unreasonable and ill-advised manner and did so to the
utmost
detriment of the Horizon employees.
[116]
NUMSA
and Boase have a lot to answer as the dismissal of the Horizon
employees could have been avoided had they acted differently,
reasonably and responsibly with the interest of the workers in mind.
[117]
The
issues the Applicants want to raise and challenge in this matter, are
the issues that ought to have been dealt with by NUMSA
during the
consultation process. Unfortunately, and despite many attempts from
the Respondent’s side to consult, NUMSA adopted
a stance that
the Respondent could not retrench any employee for a period of two
years due to an earlier merger and this view motivated
NUMSA to
approach the Competition Commission with a complaint and inspired the
attitude that no employee would be redeployed. This
cost the
individual Applicants dearly and left them unemployed.
[118]
In
Chemical
Workers Industrial Union and others v Latex Surgical Products (Pty)
Ltd
[8]
the
Labour Appeal Court held that:
“
Whether
or not there was a fair reason for the dismissal of the individual
appellants relates to a general question and a specific
question. The
general question is whether or not there was a fair reason for the
dismissal of any employees. The specific one is
whether there was a
fair reason for the dismissal of the specific employees who were
dismissed, which in this case, happened to
be the individual
appellants. The question of a fair reason to dismiss the specific
employees who were dismissed goes to the question
of the basis upon
which they were selected for dismissal whereas the other question
relates to whether or not there was a reason
to dismiss any employees
in the first place.”
[119]
In
casu
the
general question whether or not there was a fair reason for the
dismissal of any employee was already considered and answered.
[120]
The
specific question is whether there was a fair reason for the
dismissal of the employees. The Respondent wanted to redeploy the
Horizon employees and they were all invited to apply for the existing
vacant positions. Horizon was no longer operational and the
employees
had to be accommodated elsewhere. Those who applied were redeployed
and those who did not, were retrenched. In my view
this constitutes a
fair reason for the dismissal of the individual Applicants.
Costs
[121]
Costs
should be considered against the provisions of section 162 of the Act
and according to the requirements of the law and fairness.
This Court
has a very wide discretion in awarding costs.
[122]
In my
view this is a matter where a cost order would be justified, however
both parties referred to the existing relationship between
NUMSA and
the employer and as there is an ongoing relationship between the
parties that may be damaged by a cost order, a cost
order may not be
warranted.
[123]
In
the premises, I make the following order:
Order
1.
The
Applicants’ case is dismissed;
2.
There
is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court
Appearances:
For the Applicant:
Advocate M S Baloyi
Instructed by:
Ruth Edmonds Attorneys
For the Respondent:
Mr D Masher of Edward Nathan Sonnenbergs Incorporated Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
(2014) 35 ILJ 3048
(LAC).
[3]
(2015) 36 ILJ 363
(CC).
[4]
See
Intervalve
Supra where
the
court held that ‘… the wording of section 191(5)
imposes the referral of a dismissal dispute to conciliation
as a
precondition before such a dispute can either be arbitrated or
referred to the Labour Court for adjudication’, and
in the
absence of conciliation a litigant is not entitled to refer a
dismissal dispute to the Labour Court.
[5]
Act 28 of 2002.
[6]
Kotze v Rebel
Discount Liquor Group (Pty) Ltd
(2000)
21 ILJ 129 (LAC),
[2000] 2 BLLR 138
(LAC).
[7]
Atlantis Diesel
Engines (Pty) Ltd v NUMSA
(1994)
15 ILJ 1247 (A).
[8]
(2006) 27 ILJ 292
(LAC) at para 55.