About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 490
|
|
Motloutsi and Another v Paballo and Khumo Trading CC (JS07/15) [2017] ZALCJHB 490 (17 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
JS
07/15
In
the matter between:
SAMUEL
MOTLOUTSI
First
Applicant
SIBUSISO
MAZIBUKO
Second Applicant
and
PABALLO
& KHUMO TRADING
CC
Respondent
Heard
:
02-03 November 2017
Delivered
:
17
November 2017
Summary:
A referral in terms of which the applicants alleged that they were
unfairly dismissed. The respondent stating that the dismissal
was for
operational reasons and accordingly fair. The duty rests on an
employer to prove that a dismissal of an employee was unavoidable.
An
employer must disclose all relevant information prior to consultation
to ensure meaningful joint consensus-seeking engagement.
The
dismissal was unfair and the applicants were compensated.
JUDGMENT
MOSHOANA
J
Introduction
[1]
This is a referral in terms of
section 191 of the Labour Relations Act.
[1]
(LRA). The applicants allege that the respondent dismissed them
unfairly. The respondent states that the dismissal is fair as it
was
based on its operational reasons.
Background
facts
[2]
The respondent is a close corporation operating in
the electrical industry. Between the periods April to October 2014,
the respondent
suffered a loss of workload in its Services
Department. As a result thereof, the respondent had to consider
restructuring of its
business operations. Following the decision to
restructure, the respondent identified the two applicants as affected
employees.
The two applicants were invited for consultations. The
respondent held three consultation meetings with the applicants.
Ultimately
the applicants were dismissed for operational reasons.
[3]
The applicants were aggrieved by their dismissal
and approached this Court for relief. They were represented through a
pro bono
programme. The respondent resisted their claim.
Evidence
Led
[4]
Mr Salvadore Dorasamy (Dorasamy) testified that he
is the member and business owner of the respondent. His company
provides electrical
services. It provides maintenance and new
installations. The Projects Department does the new installations.
Samuel Motloutsi,
the first applicant qualified as an electrician
without any assistance of the respondent. Similarly, Sibusiso
Mazibuko, the second
applicant had qualified as an electrician
without the assistance of the respondent. The first applicant was
employed with effect
from 20 June 2011.
[5]
During 2014, there was a decrease in workload.
Employees had to work two to three hours a day. There was no work.
The respondent
decided to restructure. The first applicant was
identified for retrenchment using LIFO. The second applicant was
identified because
he had qualified as an electrician and the
respondent had no position for a qualified electrician. Keeping the
second applicant
in employment would have amounted to contravention
of the main agreement as advised by the Bargaining Council. The loss
of workload
started showing signs from April 2014 and he had hoped
that the situation will improve. It did not and in October 2014 the
respondent
could not cope with the situation.
[6]
On 23 October 2014, he issued the two applicants
with notices advising them of change in operational requirements of
the business.
He invited them for consultation at 13h00 on that day.
At the consultation meeting he explained to the applicants a decline
in
workload and informed them that no decision was taken as yet.
Alternatives were discussed and the applicants demanded documents
which were not relevant. Bumping was not a viable option since
employees in the Projects Department possess different skills. He
confirmed the minutes of the consultations as a true reflection of
what transpired. In the afternoon of 23 October 2014 he took
the
applicants’ mobile phones as they abused them. The applicants
were placed on paid leave. He disputed the fact that the
dismissal
for operational reasons was predetermined and unfair.
[7]
Access cards of the applicants were retrieved
after the unprotected strike ignited by the applicants. In
cross-examination he testified
that out of 25 employees of the
respondent only two employees were affected. He disputed that the
applicants worked with live power
although they switched from one
department to another during their training period. Further he
testified that he discovered in
July 2014 that the second applicant
qualified as an electrician. The second applicant could have been
retained as an Assistant
Electrician if the Main agreement allowed
that.
[8]
Ms Du Preez was a labour consultant in the employ
of a company that advised the respondent on labour issues. She played
an advisory
role during the retrenchment process. She assisted in
drafting the notices and had dispatched them to the applicants. She
explained
everything to the applicants. All the points listed in the
notices were discussed. She took the consultation minutes. She
drafted
letters at the request of the applicants. Alternatives were
considered and a proper process was followed.
[9]
Motloutsi testified that he was employed effective
June 2011. He started work at the Projects Department. As an
electrician he checked
generators, installed plugs and did fittings.
He used to move from one department to the other. At the time of his
dismissal, he
was at the Services Department. He is experienced in
both departments. He worked with live power. On 23 October 2014, one
Mr Moolman
informed him and the second applicant to attend a meeting.
They were not told the reason for the meeting. The meeting was held
at Sunnyside in Pretoria. Du Preez told them on arrival that she had
bad news for them since they were going to be retrenched. The
notices
for change of operational requirements of business were handed to
them on arrival at Sunnyside. Du Preez explained the
contents after
they refused to sign for the notices. It is not correct that he
worked some few hours. He worked the whole day.
[10]
Six people were employed after him. In a meeting
he suggested reduction of salary as an alternative. After the
meeting, his and
the second applicants’ mobile phones were
taken by Moolman. He considered this to be a dismissal. On Monday the
following
week there was a strike. As a result, all the access cards
were retrieved but later returned to other employees to the exclusion
of him and the second applicant. They requested financials and were
told that they are irrelevant. He made suggestions for alternatives
during the meeting.
[11]
During cross-examination he testified that the
issue of the workload was discussed and that there was a need for two
qualified electricians
as opposed to three. They engaged a lawyer
only after the first meeting, whereafter they did not.
[12]
Mazibuko testified that he was employed as
a leaner electrician. On 17 January 2014, he qualified as an
electrician. He started
at the Projects Department. He performed
qualified electrician duties and had assistants. He was told that
there was no position
for a qualified electrician. He did not insist
on a salary of a qualified electrician. He knows nothing about the
provisions of
the Main agreement. He was not offered any alternative
position.
Argument
[13]
During argument, Ms. Lancaster for the respondent
conceded that if the interpretation of the Main Agreement is wrong,
then the dismissal
of Mazibuko, the second applicant would be unfair.
On the other hand Ms. Orken for the applicants argued that the Main
Agreement
cannot be used to prove the case as it was not part of the
evidence before Court. Further she submitted that LIFO was not
properly
applied. The respondent hired new people thereafter. There
was no proper compliance with section 189 of the LRA. The applicants
seek compensation.
Evaluation
[14]
Since dismissal is not disputed, it was incumbent
on the respondent to justify the dismissal. This Court determines
substantive
fairness on the basis of the evidence presented in court.
Procedural fairness is determined with reference to what occurred at
the employer’s premises. Reduction of workload is an
operational reason. The evidence of Dorasamy was not sufficiently
disputed
by the applicants. Therefore, on the balance of
probabilities I accept that the respondent had a commercial rationale
to restructure
in order to respond to the issue of workload
reduction.
[15]
It is the duty of the respondent to show why the
applicants were dismissed. Out of 25 employees, only the two
applicants were affected
by this workload reduction. Ordinarily,
workload reduction should affect effectively all the employees.
Reduction of workload impacts
on the profits of a company. From the
evidence, it is clear that the first applicant was affected because
he was employed last.
The second applicant was affected simply
because there was no position for a qualified electrician and he
could not be retained
as an Assistant Electrician because on the
advice of the Bargaining Council, such will be in contravention of
the Main Agreement.
If the Main Agreement did not prohibit it, the
second applicant could have been retained as an Assistant Electrician
and not dismissed.
[16]
After argument I allowed parties to augment the
oral submissions in writing. The respondents made a copy of the Main
agreement available
to the Court, without pointing out the clause
that would have been offended had the second applicant been retained
as an employee
of the respondent. The owner relied on the advice of
the Bargaining Council. Having perused the Main Agreement, it is
apparent
that the advice may have been wrong. It was incumbent on the
respondent to demonstrate the prohibition in the Main Agreement.
[17]
The second applicant did not insist on a salary of
a qualified electrician. In fact, he suggested to be kept in
employment as a
trainee. Accordingly, the respondent failed to prove
that the dismissal of the second applicant could not be avoided.
Dismissal
for operational requirements must be a measure of
last resort. The dismissal of the second applicant could have been
avoided
had it not been for the advice from the Bargaining Council.
As pointed out above no provisions were pointed out to the Court
which
support the advice. It must follow that the dismissal of the
second applicant was substantively unfair.
[18]
LIFO is generally a fair selection criterion. It
simply implies that those employed last may be the first to suffer
the consequences
of a no fault dismissal. In this matter it was not
disputed that as a result of the workload reduction, the respondent
required
two qualified electricians as opposed to three. Of the three
qualified electricians, the first applicant was employed last.
Accordingly,
I do not find any unfair application of the criteria.
[19]
With regard to procedural fairness, the LRA
requires an engagement in a meaningful joint consensus-seeking
process aimed at reaching
an agreement on appropriate measures, the
method of selecting and severance pay. From the evidence before me,
such a process was
engaged in but parties failed to reach an
agreement. Section 189(3) of the LRA obligates an employer to issue a
written notice
inviting the other party to consultation. Further the
employer is obliged to disclose in writing all the relevant
information.
The notice termed “change in operational
requirements of business” only invites the applicants but does
not disclose
the relevant information as required by the section. I
accept the version of the applicants that when they attended the
first meeting
at Sunnyside, they were in the dark. How then can they
meaningfully consult? Disclosing relevant information is an essential
part
of being engaged in a meaningful joint consensus-seeking
process. The provisions of section 189(3) are peremptory and must be
complied
with by the respondent. Failure to comply renders the
dismissal procedurally unfair.
[20]
Accordingly, I come to the conclusion that the
dismissal of the first applicant is substantively fair but
procedurally unfair. The
dismissal of the second applicant is both
substantively and procedurally unfair.
[21]
Regarding the relief, the second applicant is
entitled to the primary relief. However, he does not wish to be
reinstated. Accordingly,
there are no reasons why he should not be
afforded maximum compensation. The first applicant’s dismissal
is procedurally
unfair only in so far as the defect set out
above. It will be inequitable and unjust to afford him maximum
compensation. Compensation
is not intended to punish but a
solatium
.
[22]
In the results, I make the following order:
Order
1.
The dismissal of the first applicant is substantively fair but
procedurally unfair.
2.
The dismissal of the second applicant is both substantively and
procedurally
unfair.
3.
The respondent is to pay to the first applicant as compensation, an
amount equivalent
to
three months’
salary as at the time
of dismissal less statutory deductions.
4.
The respondent is to pay to the second applicant as compensation, an
amount equivalent
to
twelve months’
salary as at the
time of dismissal less statutory deductions.
5.
There is no order as to costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicants:
Advocate Orken (
pro bono
)
Instructed
by:
Bowman Gilfillan Inc, Sandton.
For
the Respondent:
S Lancaster of Lancaster Kungoane Attorneys, Centurion.
[1]
Act 66 of
1995, as amended.